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The American Civil War Timeline- 150th Anniversary

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We now have an index of posts, thanks to BobbyLayne: The Mexican American War The Wilmot Proviso The Southern Perspective Northern perspectives The Compromise of 1850 The Fugitive Slave Act Uncle Tom'

I took a detour to the Battery after work yesterday and took some pictures for this thread. Fort Sumter pictures from the Battery

Yes, yes.....I'm sure this is the direction we're heading.

Something not mentioned is bayonets. From my understanding fixing bayonets was more of a scare tactic. The blade of a bayonet was triangular and medical technology of the time could not stitch up a triangular wound.

The most oft quoted statistic I have seen is the bayonet was responsible for less than one percent of battlefield casualties.*

That said, I have never seen an estimate of the percentages of retreats or routs caused by soldiers charging with fixed bayonets. My guess it would be fairly high.

*artillery accounted for about 8-10% of the number of wounded and killed (as opposed to 70% by WWII WWI)

Edited by BobbyLayne
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Upper South Reaction

The outbreak of war at Fort Sumter confronted the upper South with a crisis of decision. Its choice could decide the fate of the Confederacy. These 8 states contained most of the South's resources for waging war: more than half its population, two-thirds of its white population, 3/4 of it's industrial capacity, half of its horses and mules, 3/5 of its livestock and food crops. In addition, men of high potential as military leaders hailed from these states: Robert E. Lee, Thomas J. Jackson, Joseph E. Johnston, James E. B. Stuart, and Ambrose Powell Hill of Virginia; Daniel H. Hill of North Carolina; Albert Sidney Johnston and John Bell Hood of Kentucky; Nathan Bedford Forest of Tennessee.

The upper South's responst to Lincoln's April 15 militia requisition seemed to promise well for the Confederacy. Kentucky "will furnish no troops for the wicked purpose of subduing her sister Southern States," the governor wired Washington. Tennessee "will not furnish a single man for the purpose of coercion," proclaimed her governor, "but 50,000 if necessary for the defense of our rights and those of our Southern brothers." The secessionist governor of Missouri hurled the gage at the President's feet: "Your requisition is illegal, unconstitutional, revolutionary, inhuman...not one man will the State of Missouri furnish to carry on any such unholy crusade." The governors of Virginia, North Carolina, and Arkansas made similar replies, while the governors of Maryland and Delaware remained ominously silent.

These references to "our rights" and "southern brothers" suggest the motives that impelled 4 of the 8 states into the Confederacy and left 3 others with large secessionist minorities. "We must either identify ourselves with the North or the South" wrote a Virginian, while two former Norht Carolina unionists expressed the view of most of their fellows: "The division must be made on the line of slavery. The South must go with the South." In the eyes of Southern unionists, this tragic war was mainly Lincoln's fault. The calling up of militia to subdue the South was considered an unconstitutional coercion of southern states (and still is to this day by some Southern historians and others who take the position that the Union was at fault in the American Civil War- "The War of Northern Agression.")

However, while this explanation of why former unionists in the upper South converted to secession is undoubtedly sincere, the censure of Lincoln at the time had a certain self-serving quality. The claim that his call for troops was the cause of the upper South's decision to secede is misleading. As the telegraph chattered reports of the attack on Sumter April 12 and its surrender next day, huge crowds poured into the streets of Richmond, Raleigh, Nashville, and other upper South cities to celebrate this victory over the Yankees. These crowds waved Confederate flags and cheered the glorious cause of southern independence. They demanded that their own states join the cause. Scores of such demonstrations took place from April 12 to 14, before Many unionists were swept along by this powerful tide of southern nationalism; others were cowed into silence.

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I usually try to reword and condense articles I have unearthed, but I don't think I can improve on this one much; when I have something to add I'll footnote it.


Second in importance to infantry on most Civil War battlefields, was the artillery. Artillery played an important role, particularly on the defense. Cannon fire could break up an infantry attack or dissuade enemy infantry from attacking in the first place. Its mere presence could also reassure friendly infantry and so exert a moral effect that might be as important as its physical effect on the enemy.

The basic artillery unit was the battery, a group of between 4 and 6 fieldpieces commanded by a captain.(1) Early in the war, batteries tended to be attached to infantry brigades.(2) But over time it was found that they worked best when massed together, and both the Union and Confederate armies presently reorganized their artillery to facilitate this. Eventually both sides maintained extensive concentrations of artillery at corps-level or higher. Coordinating the fire of twenty or thirty guns on a single target was not unusual, and occasionally (as in the bombardment that preceded Pickett's Charge at Gettysburg) concentrations of well over hundred guns might be achieved.(3)

Practically all Civil War fieldpieces were muzzle-loaded and superficially appeared little changed from their counterparts in the 17th and 18th centuries. In fact, however, Civil War artillery was quite modern in two respects:

First, advances in metallurgy had resulted in cannon barrels that were much lighter than their predecessors but strong enough to contain more powerful charges. Thus, whereas the typical fieldpiece of the Napoleonic era fired a 6-pound round, the typical Civil War era fieldpiece fired a round double that size, with no loss in ease of handling.

Second, recent improvements had resulted in the development of practical rifled fieldpieces that had significantly greater range and accuracy than their smoothbore counterparts.

Civil War fieldpieces could fire a variety of shell types, each with its own preferred usage.

Solid shot was considered best for battering down structures and for use against massed troops (a single round could sometimes knock down several men like ten pins).

Shell - rounds that contained an explosive charge and burst into fragments when touched off by a time fuse - were used to set buildings afire or to attack troops behind earthworks or under cover.

Spherical case was similar to shell except that each round contained musket balls (78 in the case of a 12-pound shot, 38 for a 6-pound shot); it was used against bodies of troops moving in the open at ranges of from 500 to 1,500 yards.

At ranges of below 500 yards, the round of choice was canister, essentially a metal can containing about 27 cast-iron balls, each 1.5 inches in diameter. As soon as a canister round was fired, the sides of the can would rip away and the cast-iron balls would fly directly into the attacking infantry.(4) In desperate situations double and sometimes even triple charges of canister were used.

As recently as the Mexican War, artillery had been used effectively on the offensive, with fieldpieces rolling forward to advanced positions from which they could blast a hole in the enemy line. The advent of the rifled musket, however, made this tactic dangerous - defending infantry could now pick off artillerists who dared to come so close - and so the artillery had to remain farther back.(5)

In theory the greater range and accuracy of rifled cannon might have offset this a bit, but rifled cannon fired comparatively small shells of limited effectiveness against infantry at a distance. The preferred use of artillery on the offensive was therefore not against infantry but against other artillery - what was termed "counterbattery work." The idea was to mass one's own cannon against a few of the enemy's cannon and systematically fire so as to kill the enemy's artillerist and dismount his fieldpieces.


"Whoever saw a dead cavalryman?" was a byword among Civil War soldiers, a pointed allusion to the fact that the battlefield role played by the mounted arm was often negligible. For example, at the Battle of Antietam - the single bloodiest day of the entire war - the Union cavalry suffered exactly 5 men killed and 23 wounded.(6) This was in sharp contrast to the role played by cavalry during the Napoleonic era, when a well-timed cavalry charge could exploit an infantry breakthrough, overrun the enemy's retreating foot soldiers, and convert a temporary advantage into a complete battlefield triumph.

Why the failure to use cavalry to better tactical advantage? The best single explanation might be the fact that for much of the war there was simply not enough of it to achieve significant results. Whereas cavalry had comprised 20 to 25 percent of Napoleonic armies, in Civil War armies it generally averaged 8 to 10 percent or even less.(7)

The paucity of cavalry may be explained, in turn, by its much greater expense compared with infantry. A single horse might easily cost ten times the monthly pay of a Civil War private and necessitated the purchase of saddles, bridles, stirrups, and other gear as well as specialized clothing and equipment for the rider. Moreover, horses required about 26 pounds of feed and forage per day, many times the requirement of an infantryman. One might add to this the continual need for remounts to replace worn-out horses and the fact that it took far more training to make an effective cavalryman than an effective infantryman, as well as the widespread belief that the heavily-wooded terrain of America would limit opportunities to use cavalry on the battlefield.(8)

All in all, it is perhaps no wonder that Civil War armies were late in creating really powerful mounted arms.(9) Instead, cavalry tended to be used mainly for scouting and raiding, duties that took place away from the battlefields. During major engagements their mission was principally to screen the flanks or to control the rear areas. By 1863, however, the North was beginning to create cavalry forces sufficiently numerous and well-armed to play a significant role on the battlefield. At Gettysburg, for example, Union cavalrymen armed with rapid-fire, breach-loading carbines were able to hold a Confederate infantry division at bay for several hours.(10) At Cedar Creek in 1864 a massed cavalry charge late in the day completed the ruin of the Confederate army, and during the Appomattox Campaign in 1865 Federal cavalry played a decisive role in bringing Lee's retreating army to bay and forcing its surrender.

1. As a practical matter, a battery was grouped in to sections of two, commanded by a Lieutenant. The roar of the battlefield made passing of commands on the front line difficult. With infantry, you could control troops by the movement of the color guard (e.g., the soldiers in the center moved wherever the colors went, and each man dressed or conformed to the movements of the man next to him). It was impossible for a Captain to direct the fire of 4-6 cannons, so he had to rely upon subordinates.

2. All of the preceding posts refer to how the various armies operated in 1862-65. In the first year of the war, merely controlling one regiment on the battlefield proved difficult. The early battles were scarcely more than armed mobs. From an organization standpoint, a brigade was not infantry only (as in subsequent years), but would include artillery and cavalry.

3. Perhaps no greater example of the devastating effect of massed artillery on infantry exists than Malvern Hill. Sixty union guns stationed on the crest of hill held off repeated confederate assaults on July 1, 1862. Malvern Hill was the last of the Seven Days Battles, and effectively ended the Peninsula Campaign - both Union defeats, but a conclusion that was a point of great pride for the Army of Potomac for the remainder of its existence.

4. Cannister turned the smoothbore cannon into an over sized shotgun, with the projectiles being metal golf balls instead of pellets.

5. As mentioned in the small arms post, the rifled musket changed everything about ACW battlefield tactics.

6. Antietam is a poor example since McClellan had no concept of how to use cavalry; his troopers never crossed Antietam Creek that day (the casualties were mostly from random artillery fire overshoots). However, it does illustrate that once a full battle was joined, the role of cavalry was greatly diminished.

7. Horrible explanation IMO; the rifled musket was the difference.

8. Somewhat more plausible, and leads to a discussion of the enormous logistics involved in caring for the horse flesh of an army. During the Peninsula campaign the Army of Potomac need 600 tons of forage per day just to keep moving. Besides the cavalry, all officers were mounted, and hundreds of wagons driven by teams of six horses carried ammunition, dry rations, medical supplies, tents, etc. Besides coffee, hard tack (crackers) and dried beef or bacon, the men of the army were fed fresh beef - taken from herds of beef numbering in the thousands who traveled with the army.

9. Phil Sheridan used the cavalry as a powerful force during the Overland Campaign (1864), and later that year in the Shenandoah Valley scorched earth campaign. In the west, Confederate General Nathan Bedford Forrest (a non-professional, self-taught commander) utilized his troopers as shock troops.

10. John Buford's defense-in-depth is a textbook example of how a smaller force could utilize terrain to significantly delay a much larger and stronger force, and will be discussed at length when we get there.

Cavalry Role synopsis - Intelligence gathering was the most important function of cavalry in between engagements; by raiding and probing attacks the enemy lines, they could fix the positions of the other forces infantry. If the army was on the defensive awaiting attack/battle, they would fan in videttes to detect the approaching foe. Once a full engagement was under way, they served to screen the flanks (though it was preferable to anchor the flank or end of the army on a natural obstruction such as a river or creek, or to control the rear areas.

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Despite the reality, there is a certain romanticism to the calvary that lingers to this day. It's one reason why people remember JEB Stuart. It was said of him, for instance, that he was one with his horse, the greatest rider of his day, etc. We'll get to him a little later. An extremely ugly man who nonetheless managed to score with whatever hot chick he wanted.

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In the west, Confederate General Nathan Bedford Forrest (a non-professional, self-taught commander) utilized his troopers as shock troops.

I plan on paying special attention, when the time comes, to this guy. One of the most fascinating characters in a war that is chock full of them.
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Despite the reality, there is a certain romanticism to the calvary that lingers to this day. It's one reason why people remember JEB Stuart. It was said of him, for instance, that he was one with his horse, the greatest rider of his day, etc. We'll get to him a little later. An extremely ugly man who nonetheless managed to score with whatever hot chick he wanted.

Stuart was a flamboyant cavalier, but whenever I hear people question his abilities as a cavalryman (some view his chivalrous nature and combat tactics as from another age), I always remember what R.E.L. said:

He NEVER brought me a bad piece of information.

He was the eyes and ears of his commander, who relied heavily on him in formulating plans. The Army of Northern Virginia was never the same after Yellow Tavern (where Sheridan's troopers clashed with his).

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I had hoped to expand more on the role of infantry, and go over the practical usage and symbolic pride assoicated with regimental colors.

However, I think I should pause for a day or two to give folks some time to digest what I have posted so far.

Any questions from anyone, if my posts were unclear or failed to cover something you want to know more about, fire away - there is no such thing as a dumb question.

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The Secession of Virginia

News of Sumter's fall reached Richmond on the evening of April 13. A jubilant procession marched on the state capitol where a battery fired a 100 gun salute, and the crowd lowered the American flag and raised the Confederate stars and bars. Two simultaneous conventions then met to vote on secession. Passions ran high in the streets and in both convention halls. Mobs threatened violence against unionist delegates from west of the Alleghenies. On April 17, ex-Governor Henry Wise electrified the crowd by announcing that Virginia militia were in the process of seizing Harper's Ferry (where the army regulars set fire to the work and fled) and the Gosport navy base (the country's premier naval base and the largest shipbuilding and repair facility in the South. Among the 10 ships seized there in April 1861 was the powerful 40 gun steam frigate Merrimack, of which much more will be recounted later. The commander at Gosport, 68 year old Charles McCauley refused to allow his ships to escape before the militia could arrive. However, he did order the yard burned and the ships scuttled. These actions were bungled, and most of the equipment survived to be captured by the Virginians, including the hull of the Merrimack.)

These events occurred before Virginia officially seceeded but the mood of the people predestined the outcome. For all practical purposes Virginia joined the Confederacy on April 17, though it took a week later for the "official" convention to ratify the move by a vote of 88-55, with most of the nay votes coming from delegates from the western Alleghenies. (More on this later.) On April 27, the convention invited the Confederate government to make Richmond its permanent capital. This was indeed arrogant, but wasn't it deserved? Virginia had always considered itself THE southern state, really THE American state. If it was going to join the Confederacy, it would do so only on it's own terms, which meant that it would be the state in charge. And no one really expected otherwise. The southern Congress, tired of the inadequate , overcrowded facilities in Montgomery and eager to accept Virginia's allegiance, accepted the invitation on May 21. Virginians took the polls on May 23 to ratify the the secession decision. The final vote was never in doubt: 128,884 to 32,134.

Virginia brought crucial resources to the Confederacy. Her population was the South's largest. Her industrial capacity was nearly as great as that of the 7 original Confederate states combined. The Tredegar Iron Works in Richmond was the only plant in the South capable of manufacturing heavy ordnance. Virginia's heritage form the generation of Washington, Jefferson, and Madison gave her immense prestige that was expected to attract the upper South to the Confederacy.

And, as events turned out, perhaps the greatest asset that Virginia brought to the cause of southern independence was a then 54 year old soldier named Robert E. Lee.

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My next post will be a short bio of Robert E. Lee. I would note that, with the exception of Abraham Lincoln, no American of the 19th century is more famous, more studies, or has more biographies. Every aspect of this man's life and utterances has been studied and dissected, and some historians and biographers have a very different view than others. Lee is certainly the most revered Confederate, and this is interesting because Lee never became the leader of the South; that role belonged to Jefferson Davis. (Although I am reasonably sure that if the South had won its independence, Lee would have been its 2nd President had he desired that role.) Compare this to the North, where Lincoln is far more revered in history than the greatest of the Northern solddiers.

I think part of the reason for this fascination with Lee is that, like very few other historical figures, he pretty much has everything going for him. Of course he is a brilliant military mind, and for this reason alone he will always be studied for his achievements in this area (which were often remarkable.) But he also good looking, an aristocrat of the "best" Virginia bloodlines, incredible honorable, incredibly chivalrous, devoted to his sickly wife, with a restraint that rarely allowed emotion to break through the crust of dignity. This restraint is personal affairs is contrasted by a willingness to gamble in war in a way that exceeds even Napoleon, even Rommel. Lee is, in the minds of military historians, the greatest successful gambler in the history of warfare.

The urge to romanticize Lee (and I'm a victim of it myself) means that there is a good bit of revisionism that exists. Nowadays, some school children are taught, for instance, that Lee hated slavery. It's true that in 1856 he called it a "moral and political evil." But this did not prevent Lee from owning slaves, as Jefferson did, nor, did it prevent him from having his slaves whipped. Lee did think that secession was a foolish idea, by all accounts. Yet he tried to defend it as best he could, and came close to succeeding.

Once again, I'm only going to hit the highlights with Lee. There are several dozen biographies of the man; truly recommended reading if you want to explore this subject. (Although some of them are revisionist as well. Be careful.)

We turn to Lee's bio and his decision to join the Confederacy next.

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Robert E. Lee Part One

Robert E. Lee was born January 19, 1807 at Stratford Hall Plantation in Westmoreland County, Virginia, the fifth child of Revolutionary War hero Henry Lee ("Light Horse Harry") and Anne Hill (née Carter) Lee. Lee's parents were members of the Virginia gentry class. Lee's paternal ancestors were among the earliest settlers in Virginia. His mother grew up at Shirley Plantation, one of the most elegant homes in Virginia. His maternal great-great-grandfather, Robert "King" Carter of Corotoman, was the wealthiest man in the colonies when he died in 1732. "Harry Lee" met severe financial reverses from failed investments. Historian Gary W. Gallagher wrote, "Harry Lee had not been able to exercise self-control or take care of his family, and so he abandoned them." That was a stark lesson for young Robert E. Lee." However, in Lee of Virginiait is noted that Harry Lee "was very seriously injured by a mob in Baltimore while attempting to defend the house of a friend. Later he made a voyage to the West Indies seeking restoration for his shattered health. On his way home ... he died..." Lee of Virginia also notes "...in the West Indies, Henry Lee wrote a series of letters to his son, Carter..."During his young life,. later described by Robert E. Lee as "'Those letters of love and wisdom.'"

Lee's father died when Lee was eleven years old, leaving the family deeply in debt. When Lee was three years old, his older half-brother, the heir to the Stratford Hall Plantation, having reached his majority, established Stratford as his home. The rest of the family moved to Alexandria, Virginia, where Lee grew up in a series of relatives' houses. Lee attended Alexandria Academy, where he studied Greek, Latin, Algebra, and Geometry. Lee was considered a top student and excelled at mathematics. His mother, a devout Christian, oversaw his religious instruction at Christ Episcopal Church in Alexandria.

He entered the United States Military Academy in 1825 and became the first cadet to achieve the rank of sergeant at the end of his first year. When he graduated in 1829 he was at the head of his class in artillery and tactics, and shared the distinction with five other cadets of having received no demerits during the four-year course of instruction. Overall, he ranked second in his class of 46. He was commissioned as a brevet second lieutenant in the Corps of Engineers.

Lee served for just over seventeen months at Fort Pulaski on Cockspur Island, Georgia. In 1831, he was transferred to Fort Monroe at the tip of the Virginia Peninsula and played a major role in the final construction of Fort Monroe and its opposite, Fort Calhoun. Fort Monroe was completely surrounded by a moat. Fort Calhoun, later renamed Fort Wool, was built on a man-made island across the navigational channel from Old Point Comfort in the middle of the mouth of Hampton Roads. When construction was completed in 1834, Fort Monroe was referred to as the "Gibraltar of Chesapeake Bay." While he was stationed at Fort Monroe, he married.

Lee served as an assistant in the chief engineer's office in Washington, D.C. from 1834 to 1837, but spent the summer of 1835 helping to lay out the state line between Ohio and Michigan. As a first lieutenant of engineers in 1837, he supervised the engineering work for St. Louis harbor and for the upper Mississippi and Missouri rivers. Among his projects was blasting a channel through the Des Moines Rapids on the Mississippi by Keokuk, Iowa, where the Mississippi's mean depth of 2.4 feet was the upper limit of steamboat traffic on the river. His work there earned him a promotion to captain.

While he was stationed at Fort Monroe, he married Mary Anna Randolph Custis, great-granddaughter of Martha Washington by her first husband Daniel Parke Custis, and step-great-granddaughter of George Washington. Mary was the only surviving child of George Washington Parke Custis, George Washington's stepgrandson, and Mary Lee Fitzhugh Custis, daughter of William Fitzhugh and Ann Randolph. They were married on June 30, 1831 at Arlington House, her parents' house just across from Washington, D.C. They eventually had seven children, three boys and four girls:

George Washington Custis Lee (Custis, "Boo"); 1832–1913; served as Major General in the Confederate Army and aide-de-camp to President Jefferson Davis; unmarried

Mary Custis Lee (Mary, "Daughter"); 1835–1918; unmarried

William Henry Fitzhugh Lee ("Rooney"); 1837–1891; served as Major General in the Confederate Army (cavalry); married twice; surviving children by second marriage

Anne Carter Lee (Annie); June 18, 1839 – October 20, 1862; died of typhoid fever, unmarried

Eleanor Agnes Lee (Agnes); 1841 – October 15, 1873; died of tuberculosis, unmarried

Robert Edward Lee, Jr. (Rob); 1843–1914; served as Captain in the Confederate Army (Rockbridge Artillery); married twice; surviving children by second marriage

Mildred Childe Lee (Milly, "Precious Life"); 1846–1905; unmarried

All the children survived him except for Annie, who died in 1862. They are all buried with their parents in the crypt of the Lee Chapel at Washington and Lee University in Lexington, Virginia. Lee is also related to Helen Keller, through Helen's mother, Kate.

Lee distinguished himself in the Mexican–American War. He was one of Winfield Scott's chief aides in the march from Veracruz to Mexico City. He was instrumental in several American victories through his personal reconnaissance as a staff officer; he found routes of attack that the Mexicans had not defended because they thought the terrain was impassable.

He was promoted to brevet major after the Battle of Cerro Gordo on April 18, 1847. He also fought at Contreras, Churubusco, and Chapultepec, and was wounded at the last. By the end of the war, he had received additional brevet promotions to Lieutenant Colonel and Colonel, but his permanent rank was still Captain of Engineers and he would remain a Captain until his transfer to the cavalry in 1855.

For the first time Robert E. Lee and Ulysses S. Grant met and worked with each other during the Mexican-American War. Both Lee and Grant participated in the Scott's march from the coastal town of Vera Cruz to Mexico City. Grant gained wartime experience as a quartermaster, Lee as an engineer who positioned troops and artillery. Both did their share of actual fighting. At Vera Cruz, Lee earned a commendation for "greatly distinguished" service. Grant was among the leaders at the bloody assault at Molino del Rey, and both soldiers were among the forces that entered Mexico City. Close observations of their commanders constituted a learning process for both Lee and Grant.

After the Mexican War, he spent three years at Fort Carroll in Baltimore harbor. During this time his service was interrupted by other duties, among them surveying/updating maps in Florida, an offer from Secretary of War Jefferson Davis to lead an attack on Cuba (Lee declined), and a brief military assignment out west. In September 1852, Lee became the superintendent of West Point. During his three years at West Point, Brevet Colonel Robert E. Lee improved the buildings and courses, and spent a lot of time with the cadets. Lee's oldest son, George Washington Custis Lee, attended West Point during his tenure. Custis Lee graduated in 1854, first in his class.

In 1855, Lee's tour of duty at West Point ended and he was appointed Lieutenant Colonel of the newly formed 2nd U.S. Cavalry regiment. It was Lee's first substantive promotion in the Army since his promotion to Captain in 1838, despite having been brevetted a Colonel, which was an honorary promotion. By accepting promotion, Lee left the Corps of Engineers where he had served for over 25 years. The Colonelcy of the regiment was given to Albert Sidney Johnston, who had previously served as a Major in the Paymaster Department, and the regiment was assigned to Camp Cooper, Texas. There he helped protect settlers from attacks by the Apache and the Comanche.

These were not happy years for Lee, as he did not like to be away from his family for long periods of time, especially as his wife was becoming increasingly ill. Lee came home to see her as often as he could.

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Robert E. Lee's Views on Slavery

The following is a look at Robert E. Lee's views on slavery, based on multiple sources. This is highly controversial material that continues to be a furious argument among Civil War era Historians. I am repeating it not to slur Lee but because I find it fascinating. But I don't claim to know how much of this is authentic, one way or the other:

In 1802, the first slaves to inhabit Arlington arrived at the estate with their owner, George Washington Parke Custis. The grandson of Martha Washington and adopted grandson of George Washington, Custis had grown up at Mount Vernon, as had many of his slaves. Upon Martha Washington's death, Custis inherited her slaves and purchased others who belonged to his mother, Eleanor Custis Stuart. In all, Custis owned 196 slaves and as many as 63 lived and worked at Arlington. Some of these slaves enjoyed relatively more freedom than other slaves at Arlington. Some of these slaves had close or personal relationships with their owners.

As a member of the Virginia aristocracy, Lee lived in close contact with slavery before he joined the Army and held variously around a half-dozen slaves under his own name. When George Washington Parke Custis died in October 1857, Robert E. Lee —one of four executors of the Custis estate—determined that the slave labor was necessary to improve Arlington's financial status. The will provided for the slaves to be emancipated "in such a manner as to my executors may seem most expedient and proper", providing a maximum of five years for the legal and logistical details of manumission. Lee found himself in need of funds to pay his father-in-law's debts and repair the properties he had inherited. Custis' will stipulated that all the Arlington slaves should be freed upon his death with any debts and legacies paid for all within a five year period. The Arlington slaves found Lee to be a stringent executor of Custis' will. Rather than emancipation, Lee decided to make money by taking control of the slaves, working them on the plantation, and hiring them out to neighboring plantations and to eastern Virginia.

Lee tried to hire an overseer to handle the plantation in his absence, writing to his cousin, "I wish to get an energetic honest farmer, who while he will be considerate & kind to the negroes, will be firm & make them do their duty." Lee failed to find a man for the job, and had to take a two-year leave of absence from the army in order to run the plantation himself. He found the experience frustrating and difficult; some of the slaves were unhappy and demanded their freedom. Many of them had been given to understand that they were to be made free as soon as Custis died.In May 1858, Lee wrote to his son Rooney, "I have had some trouble with some of the people. Reuben, Parks & Edward, in the beginning of the previous week, rebelled against my authority--refused to obey my orders, & said they were as free as I was, etc., etc.--I succeeded in capturing them & lodging them in jail. They resisted till overpowered & called upon the other people to rescue them." Less than two months after they were sent to the Alexandria jail, Lee decided to remove these three men and three female house slaves from Arlington, and sent them under lock and key to the slave-trader William Overton Winston in Richmond, who was instructed to keep them in jail until he could find "good & responsible" slaveholders to work them until the end of the five year period.

In 1859, three of the Arlington slaves—Wesley Norris, his sister Mary, and a cousin of theirs—fled for the North, but were captured a few miles from the Pennsylvania border and forced to return to Arlington. On June 24, 1859, the New York Daily Tribune published two anonymous letters (dated June 19, 1859 and June 21, 1859), each of which claimed to have heard that Lee had the Norrises whipped, and went so far as to claim that Lee himself had whipped the woman when the overseer refused to. Lee wrote to his son Custis that "The N. Y. Tribune has attacked me for my treatment of your grandfather's slaves, but I shall not reply. He has left me an unpleasant legacy." Biographers of Lee have differed over the credibility of the Tribune letters. Douglas S. Freeman, in his 1934 biography of Lee, described the letters to the Tribune as "Lee's first experience with the extravagance of irresponsible antislavery agitators" and asserted that "There is no evidence, direct or indirect, that Lee ever had them or any other Negroes flogged. The usage at Arlington and elsewhere in Virginia among people of Lee's station forbade such a thing." Michael Fellman, in The Making of Robert E. Lee(2000), found the claims that Lee had personally whipped Mary Norris "extremely unlikely", but not at all unlikely that Lee had had the slaves whipped: "corporal punishment (for which Lee substituted the euphemism 'firmness') was (believed to be) an intrinsic and necessary part of slave discipline. Although it was supposed to be applied only in a calm and rational manner, overtly physical domination of slaves, unchecked by law, was always brutal and potentially savage."

There was, however, direct testimony given by Wesley Norris that the whipping and brining occurred. Wesley Norris himself discussed the incident after the war, in an 1866 interview printed in the National Anti-Slavery Standard. Norris stated that after they had been captured, and forced to return to Arlington, Lee told them that "he would teach us a lesson we would not soon forget." According to Norris' testimony, Lee then had the three of them firmly tied to posts by Mr. Gwin, the overseer, and ordered them whipped with fifty lashes for the men and twenty for Mary Norris, Wesley Norris' sister. According to Norris, Lee encouraged the whipping, but did not personally inflict the whipping on any of the slaves, male or female. The overseer, Mr. Gwin, had refused to do the whipping. Lee then called in the county constable, Dick Williams, who did the actual whipping. Norris claimed that Lee then had the overseer, Mr. Gwin, rub their lacerated backs with brine (this was a common, if cruel, way to prevent infection from the lacerations). Norris even claimed there were dozens of witnesses to the whipping and brining event.

My name is Wesley Norris; I was born a slave on the plantation of George Parke Custis; after the death of Mr. Custis, Gen. Lee, who had been made executor of the estate, assumed control of the slaves, in number about seventy; it was the general impression among the slaves of Mr. Custis that on his death they should be forever free; in fact this statement had been made to them by Mr. C. years before; at his death we were informed by Gen. Lee that by the conditions of the will we must remain slaves for five years...we were immediately taken before Gen. Lee, who demanded the reason why we ran away; we frankly told him that we considered ourselves free; he then told us he would teach us a lesson we never would forget...we were tied firmly to posts by a Mr. Gwin, our overseer, who was ordered by Gen. Lee to strip us to the waist and give us fifty lashes each, excepting my sister, who received but twenty...[Mr. Gwin] had sufficient humanity to decline whipping us; accordingly Dick Williams, a county constable, was called in, who gave us the number of lashes ordered; Gen. Lee, in the meantime, stood by, and frequently enjoined Williams to ""lay it on well,"" an injunction which he did not fail to heed; not satisfied with simply lacerating our naked flesh, Gen. Lee then ordered the overseer to thoroughly wash our backs with brine, which was done...After this my cousin and myself were sent to Hanover Court-House jail, my sister being sent to Richmond to an agent to be hired; we remained in jail about a week...what I have stated is true in every particular, and I can at any time bring at least a dozen witnesses, both white and black, to substantiate my statements.

The Norris brothers were then sent by Lee's agent to work on the railroads in Richmond and Alabama. Wesley Norris gained his freedom in January 1863 by slipping through the Confederate lines near Richmond to Union-controlled territory. Lee freed all the other Custis slaves after the end of the five year period in the winter of 1862, filing the deed of manumission on December 29, 1862.

Robert E. Lee was late in emancipating the Custis slaves, even by the technicalities of the will. George Washington Parke Custis's will legally required Lee to emancipate the slaves that passed into his control within five years of Custis' death. Custis died October 10, 1857 and his will was probated December 7, 1857. Lee kept the slaves over the five year limit and finally filed the deed of manumission with Court of the City of Richmond, Virginia on December 29, 1862—five years, two months, and nineteen days after Custis' death. The text of the Custis' will is as follows:

And upon the legacies to my four granddaughters being paid, and my estates that are required to pay the said legacies, being clear of debts, then I give freedom to my slaves, the said slaves to be emancipated by my executors in such manner as to my executors may seem most expedient and proper, the said emancipation to be accomplished in not exceeding five years from the time of my decease.

And I do constitute and appoint as my executor Lieut. Col. Robert Edward Lee, Robert Lee Randolph, of Eaton View, Rt. Rev. Bishop Meade, and George Washington Peter.

Lee used the 5 year limit as qualification to run a slave plantation rather than to set the slaves free. The matter of the five years was supposed to be time for Custis' executors to do the legal paperwork for emancipation "in such manner as to my executors may seem most expedient and proper". There is good reason to read the clause as intending for the five years to serve as an upper bound on settling the legal details, not as five more years for driving the slaves for whatever last bits of forced labor could be gotten. Rather than just trying to settle the debts, pay for legacies, and then emancipate the slaves, Lee set the slaves as forced labor for his own profit during the 5 year period allotted for the will. No ownership rights were given in the Custis will for Lee or any other executors to hire out slaves. According to Norris' 1866 testimony Lee had told the slaves they "must remain slaves for 5 years". There was no requirement the slaves remain in slavery for 5 years in the Custis will.

However, it should be noted that the Battle of Cheat Mountain, also known as the Battle of Cheat Summit Fort, took place September 12-15, 1861, in Pocahontas County and Randolph County, Virginia (now West Virginia) as part of the Operations in Western Virginia Campaign during the American Civil War. Confederate Gen. Robert E. Lee directed his first offensive of the war. This would have allowed Lee about 25 days to emancipate the Custis slaves after the battle to be within the 5 year limit of the Custis will. Lee's responsibilities as an officer in the Confederate Army may have delayed the emancipation date.

Since the end of the Civil War, it has often been suggested that Lee was in some sense opposed to slavery. In the period following the Civil War and Reconstruction, and after his death, Lee became a central figure in the Lost Cause interpretation of the war, and as succeeding generations came to look on slavery as a terrible immorality, the idea that Lee had always somehow opposed it helped maintain his stature as a symbol of Southern honor and national reconciliation.

Some of the evidence cited in favor of the claim that Lee opposed slavery, are the manumission of Custis' slaves, as discussed above, and his support, towards the end of the war, for enrolling slaves in the Confederate States Army, with manumission offered as an eventual reward for good service. Lee gave his public support to this idea two weeks before Appomattox, too late for it to do any good for the Confederacy.

In December 1864, Lee was shown a letter by Louisiana Senator Edward Sparrow, written by General St. John R. Liddell, which noted that Lee would be hard-pressed in the interior of Virginia by spring, and the need to consider Patrick Cleburne's plan to emancipate the slaves and put all men in the army that were willing to join. Lee was said to have agreed on all points and desired to get black soldiers, saying that "he could make soldiers out of any human being that had arms and legs."

Another source is Lee's 1856 letter to his wife, which can be interpreted in multiple ways:

In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country. It is useless to expatiate on its disadvantages. I think it however a greater evil to the white man than to the black race, & while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former. The blacks are immeasurably better off here than in Africa, morally, socially & physically. The painful discipline they are undergoing, is necessary for their instruction as a race, & I hope will prepare & lead them to better things. How long their subjugation may be necessary is known & ordered by a wise Merciful Providence.

Freeman's analysis puts Lee's attitude toward slavery and abolition in historical context:

This [letter] was the prevailing view among most religious people of Lee's class in the border states. They believed that slavery existed because God willed it and they thought it would end when God so ruled. The time and the means were not theirs to decide, conscious though they were of the ill-effects of Negro slavery on both races. Lee shared these convictions of his neighbors without having come in contact with the worst evils of African bondage. He spent no considerable time in any state south of Virginia from the day he left Fort Pulaski in 1831 until he went to Texas in 1856. All his reflective years had been passed in the North or in the border states. He had never been among the blacks on a cotton or rice plantation. At Arlington the servants had been notoriously indolent, their master's master. Lee, in short, was only acquainted with slavery at its best and he judged it accordingly. At the same time, he was under no illusion regarding the aims of the Abolitionist or the effect of their agitation.

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Robert E. Lee, Continued

So why should we care about this? Why is it important one way or another whether or nor Lee was pro-slavery, or mistreated blacks? Why not simply accept him as a man of his times, from the South, and leave it at that? Why do historians fight over this?

The answer to this question stems from the "Lost Cause" movement, and it's important to recognize what this movement is all about, because it colors our intepretation of just about every event of the American Civil War.

A brief description from Wiki:

The Lost Cause is the name commonly given to a literary and intellectual movement that sought to reconcile the traditional white society of the Southern United States to the defeat of the Confederate States of America in the Civil War of 1861–1865. Those who contributed to the movement tended to portray the Confederacy's cause as noble and most of the Confederacy's leaders as exemplars of old-fashioned chivalry, defeated by the Union armies not through superior military skill, but by overwhelming force. They also tended to condemn Reconstruction.

There is no one who is more affected by this attempt to romanticize the Confederates than Robert E. Lee. Lee was a fine man, a great man, IMO, but he was certainly not without flaws. However, it seems necessary for the Lost Cause movement to MAKE him without flaws, and as a result, any criticism of Lee for any reason whatsoever is fought by a host of southern historians, the most famous one being the late Douglas Southall Freeman, who wrote several famous (and admittedly brilliant) histories of Lee and his soldiers in the 1930s.

As we shall see, this argument for Lee extends beyond his views on slavery. It cannot be acknowledged that he made ANY mistakes in battle. Therefore in the Battle of Gettysburg, for instance Longstreet is villified beyond all reason. The veneration was also extended to Stonewall Jackson- Jackson and Lee being the "soul" of the confederacy.

As we study the events of the Civil War, especially from the POV of the South, it is important to keep these ideas in mind. IMO, the Lost Cause movement was inevitable and probably in some ways a good thing, in that it allowed the South to feel better about itself and recuperate from its suffering during the war and Reconstruction. It must also be said that like all passionate movements, it created some brilliant art, like Freeman's work, and both the novel andd movie of Gone With The Wind. However, history should be as close to the truth as possible. We didn't live then, so there is no way to KNOW the truth, but we should at least try to do the best we can to get as close as possible.

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Robert E. Lee, Concluded

At the outbreak of the American Civil War, General-in-Chief Winfield Scott considered Lee the best officer in the army. (Ironically, at this time, Jefferson Davis did not; he thought Lee a fine officer, but regarded Albert Sidney Johnston as the best.) In April, Scott urged Lincoln to offer Lee field command of the newly levied Union army. As a fellow Virginian Scott hoped that Lee, like himself, would remain loyal to the service to which he had devoted his life. Lee had made clear what he thought of secession. "The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation," he wrote in January 1861, "if it was intended to be broken up by every member of the Union at will. It is idle to talk of secession."

But with Virginia's decision to secede, everything changed. "I must side either with or against my section," Lee told a northern friend. His choice was foreordained by birth and blood: "I cannot raise my hand against my birthplace, my home, my children." On the very day he learned of Virginia's secession, April 18, Lee also received the offer of Union command. He told his friend General Scott regretfully that he must not only decline, but must also resign from the army. "Save in defense of my native state," said Lee, "I never desire again to draw my sword." Scott replied sadly, "You have made the greatest mistake of your life, but I feared it would be so."

Five days later Lee accepted appointment as Commander in chief of Virginia's military forces; three weeks after that he became a brigidier general in the Confederate army. Most officers from the upper South made a similar decision to go with their states, some without hesitation, others with the same fears that Lee expressed on May 5: "I forsee that the country will have to pass through a terrible ordeal, a necessary expiation perhaps for our national sins."

Scores of southern officers, however, like Scott remained loyal to nation rather than section. some of them played key roles in the eventual triumph of the Union: Virginian George H. Thomas, who saved the Union Army of the Cumberland at Chickamauga and destroyed the Confederate Army of Tennessee at Nashville; Tennessean David G. Farragut, who captured New Orleans and damned the torpedoes at Mobile Bay; North Carolinian John Gibbon, who became one of the best division commanders in the Army of the Potomac while three of his brothers fought for the South. At the same time a few northern-born officers who had married southern women chose to go with their wives' section rather than their own, and rose to high positions in the Confederacy: New Jersey's Samuel Cooper, who married a Virginian and became adjutant general in the Confederate army; Pennsylvanian John Pemberton, who also married a Virginia woman and rose to command of the Army of Mississippi, which he surrendered to Grant at Vicksburg; and Josiah Gorgas, also of Pennsylvania, who married the daughter of an Alabama governor, became chief of ordnance for the Confederacy, where he created miracles of improvisation and instant industrialization to keep Confederate armies supplied with arms and ammunition.

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If you remember nothing else, fix this fact in your mind: the rifled musket changed everything. In the first year of the war, almost all soldiers carried smoothbore weapons, which had an effective range of 125 yards. The rifle that became common in 1862 and ubiquitous by 1863 was far more accurate and had a range of 600 yards.

Apparently not.

Unfortunately, the technological advancement outpaced the tactics; generals continued to order frontal assaults, which against the rifle would prove over time to be near suicidal.


This is a common refrain. Even though technology advances, the older soldiers (unfortunately, the decision-makers) are still fighting the last war.

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Arkansas, North Carolina, and Tennessee

The example of Virgina- and of Robert E. Lee- exerted a powerful influence on the rest of the upper South. Arkansas was the next state to go. Its convention had adjourned in March without taking action, subject to recall in case of emergency. Lincoln's call for troops supplied the emergency; the convention reassembled on May 6. Even before the delegates arrived in Little Rock, however, pro-secession Governor Henry Rector aligned his state with the Confederacy by seizing federal arsenals at Fort Smith and Little Rock and by allowing Confederate forces to place artillery to command the Mississippi at Helena. The convention met in an atmosphere of high emotion, the galleries packed with spectators waiving Confederate flags. Within minutes an ordinance of secession came to the floor. A motion to submit this ordinance to a referendum- a test vote of unionist strength at the convention- was defeated 55 to 15. Most of the 15 minority delegates came from the Ozark Plateau of northwest Arkansas, where few slaves lived. After defeat of this motion, the convention passed the ordinance of secession by a vote of 65 to 5.

North Carolina and Tennessee also went out during May. Even before calling the legislature into special session, the governor of North Carolina ordered the militia to seize three federal forts on the coast and the arsenal at Fayetterville. The legislature met on May 1 and authorized an election on May 13 for a convention to meet on May 20. During these weeks everyone in the state, even in the previously unionist mountain counties, seemed to favor secession. "This furor, this moral epidemic, swept over the country like a tempest, before which the entire population seemed to succumb.," wrote a participant. The vote was unanimous for secession. Meanwhile the Tennesee legislature short-circuited the convention process by adopting a "Declaration of Independence" and submitting it to a referendum scheduled for June 8. Tennessee imitated the action of Virginia by concluding a military alliance with the Confederacy and allowing Confederate troops to enter the state several weeks before the referendum. That election recorded 104,913 for secession and 47,238 against. Significantly, however, the voters of mountainous east Tennesee cast 70% of their ballots against secession.

Although speeches and editorials in the upper South bristled with references to rights, liberty, state sovereignity, honor, resistance to coercion, and identity with southern brothers, such rhetoric could not conceal the fundamental issue of slavery.

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The Baltimore Riots, Part One

In the 4 border states the proportion of slaves and slaveowners was less than half what what it was in the 11 states that seceded. But the triumph of unionism in these states was not easy and the outcome (except in Delaware) by no means certain. Maryland, Kentucky, and Missouri contained large and resolute secessionist minorities. A slight twist in the chain of events might have enabled this faction to prevail in any of these states. Much was at stake in this contest. The 3 states would have added 45% to the white population and military manpower of the Confederacy, 80% of its manufactuing capacity, and nearly 40% to its supply of horses and mules. For almost 500 miles the Ohio river flows along the northern border of Kentucky, providing a defensive barrier or an avenue of invasion, depending upon which side could control and fortify it. Two of the Ohio's navigable tributaries, the Cumberland and Tennessee rivers, penetrate through Kentucky into the heart of Tennessee and northern Alabama. Little wonder that Lincoln was reported to have said that while he hoped to have God on his side, he must have Kentucky.

Control of Maryland was even more immediately crucial, for the state enclosed Washington on 3 sides (with Virginia on the 4th) and its allegience could determine the capital's fate at the outset of the war. Like the lower South, Maryland had voted for Breckinridge in the presidential election. Southern-Rights Democrats controlled the legislature; only the stubborn refusal of unionist Governor Thomas Hicks to call the legislature into session forestalled action by that body. The tobacco counties of southern Maryland and the eastern shore of the Chesapeake Bay were secessionist. The grain-growing counties of northern and western Maryland, containing few slaves, were safe for the Union. But the loyalty of Baltimore, with a third of the state's population, was suspect. The Mayor's unionism was barely tepid, and the police chief sympathized with the South. Confederate flags appeared on many city homes and buildings during the tense days after Sumter. The traditional role of mobs in Baltimore politics created a volatile situation. Only a spark was needed to ignite the state's secessionists; such a spark hit the streets of Baltimore on April 19.

On that day the 6th Massachusetts Regiment- the first fully equipped unit to respond to Lincoln's call for troops- entered Baltimore on its way to Washington. No rail line passed through Baltimore, so the troops had to detrain at the east-side station and cross the city to board a train to the capital. A mob gathered in the path of the soldiers and grew increasingly violent. Rioters attacked the rear companies of the regiment with bricks, paving stones, and pistols. Angry and afraid, a few soldiers opened fire. That unleashed the mob. By the time the Massachusetts men had fought their way to the station and entrained for Washington, 4 soldiers and 12 citizens of Baltimore lay dead and dozens more were wounded.

These deaths were to be the first of more than 700,000 combat casualties during the next 4 years.

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Battlefield Tactics (cont.)

Previous topics can be found here:

artillery and cavalry tactics

effective ranges of weapons, organization of ACW armies, & basic battlefield functions of leaders

introduction to ACW army structure & basic attack vs. defense tactics

introduction to ACW small arms & field artillery

We'll continue the discussion tonight with more tactical information about infantry.


Infantrymen fought on foot, each with his own weapon. Infantry were by far the most numerous part of a Civil War army and were chiefly responsible for seizing and holding ground. The basic Civil War tactic was to put a lot of men next to one another in a line of battle and have them move and shoot together. By present-day standards the notion of placing troops shoulder-to-shoulder seems insane, but it still made good sense in the mid-19th century.

There were two reasons for this:

First, it allowed soldiers to concentrate the fire of what were still rather limited weapons.

Second, it was almost the only way to move troops effectively under fire.

Most Civil War infantrymen used muzzle-loading muskets capable of being loaded and fired a maximum of about three times a minute. Individually, therefore, a soldier was nothing. He could affect the battlefield only by combining his fire with that of other infantrymen. Although spreading out made them less vulnerable, infantrymen very quickly lost the ability to combine their fire effectively if they did so. Even more critically, their officers rapidly lost the ability to control them.

For most purposes, the smallest tactical unit on a Civil War battlefield was the regiment. Although theoretically composed of about 1,000 officers and men, in reality the average Civil War regiment went into battle with about 300-600 men. Whatever its size, however, all members of the regiment had to be able to understand and carry out the orders of their colonel and subordinate officers, who generally could communicate only through voice command.

Since in the din and confusion of battle only a few soldiers could actually hear any given command, most got the message chiefly by conforming to the movements of the men immediately around them. Maintaining "touch of elbows" - the prescribed close interval - was indispensable for this crude but vital system to work. In addition, infantrymen were trained to "follow the colors" - the regimental flag and national colors were always conspicuously placed in the front and center of each regiment.

Thus, when in doubt as to what maneuver the regiment was trying to carry out, soldiers could look to see the direction in which the colors were moving. That is one major reason why the post of color bearer was habitually given to the bravest men in the unit. It was not just an honor; it was insurance that the colors would always move in the direction desired by the colonel.

En route to a battle area, regiments typically moved in a column formation, four men abreast. There was a simple maneuver whereby regiments could very rapidly change from column to line once in the battle area; i.e., from a formation designed for ease of movement to a formation designed to maximize firepower. Regiments normally moved and fought in line of battle - a close-order formation actually composed of two lines, front and rear.

Attacking units rarely "charged" in the sense of running full-tilt toward the enemy; such a maneuver would promptly destroy the formation as faster men outstripped slower ones and everyone spread out. Instead a regiment using orthodox tactics would typically step off on an attack moving at a "quick time" rate of 110 steps per minute (at which rate it would cover about 85 yards per minute). Once under serious fire the rate of advance might be increased to a so-called "double-quick time" of 165 steps per minute (about 150 yards per minute).

Only when the regiment was within a few dozen yards of the defending line would the regiment be ordered to advance at a "run" (a very rapid pace but still not a sprint). Thus a regiment might easily take about ten minutes to "charge" 1,000 yards, even if it did not pause for re-alignment or execute any further maneuvers en route. In theory an attacking unit would not stop until it reached the enemy line, if then.

The idea was to force back the defenders through the size, momentum, and shock effect of the attacking column. (Fixed bayonets were considered indispensable for maximizing the desired shock effect).

In reality, however, the firepower of the defense eventually led most Civil War regiments to stop and return the fire - often at ranges of less than 100 yards. And very often the "charge" would turn into a stand-up fire fight at murderously short range, until one side or the other gave way.

It is important to bear in mind that the above represents a simplified idea of Civil War infantry combat. As you will see when we discuss specific battlefields, the reality could vary significantly.

There is an old axiom that no plan survives first contact with the enemy' (which is actually a simplified paraphrase of Moltke's theory of war). Rarely did ACW battles proceed according to plan - but the blunders and fortuitous accidents are part of why it is such a fascinating war to review.

At some point we may delve into military theory, at least enough to understand the art of war according to Jomini, which was taught for decades at West Point, and familiar to all the professional soldiers on both sides. Interestingly, while there is no contemporaneous evidence that ACW commanders relied upon von Clausewitz's competing theories (as outlined in On War), in practice the principles of the latter came to the fore by wars end.

Edited by BobbyLayne
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Robert E. Lee Part One

South Carolina used to offer Lee's birthday as a State Holiday for its employees. Several other states still celebrate Lee's birthday.

I have a painting of Lee hanging in my dinning room (this one) and two sets of plates by Mort Küntsler in my den. my MIL gave me these plates over several years for birthdays and Christmases. Between these I have 16 images of Lee and 15 of Stonewall hanging in my house. I also have another painting of Lee that was given to me that I have not found a place for.

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Robert E. Lee Part One

South Carolina used to offer Lee's birthday as a State Holiday for its employees. Several other states still celebrate Lee's birthday.

I have a painting of Lee hanging in my dinning room (this one) and two sets of plates by Mort Küntsler in my den. my MIL gave me these plates over several years for birthdays and Christmases. Between these I have 16 images of Lee and 15 of Stonewall hanging in my house. I also have another painting of Lee that was given to me that I have not found a place for.

Do you celebrate Lincoln's birthday in South Carolina?
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Robert E. Lee Part One

South Carolina used to offer Lee's birthday as a State Holiday for its employees. Several other states still celebrate Lee's birthday.

I have a painting of Lee hanging in my dinning room (this one) and two sets of plates by Mort Küntsler in my den. my MIL gave me these plates over several years for birthdays and Christmases. Between these I have 16 images of Lee and 15 of Stonewall hanging in my house. I also have another painting of Lee that was given to me that I have not found a place for.

Do you celebrate Lincoln's birthday in South Carolina?
It's called Presidents' Day. Although the 12th was my brother-in-law's birthday. Edited by Mjolnirs
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The Baltimore Riots, Part Two

Maryland flamed with passion. Here was coercion in deadly earnest. Worst of all, the soldiers who had killed Baltimore citizens were from the blackest of all Black Republican states, Massachusetts. To prevent more northern regiments from entering Baltimore, the mayor and the chief of police, with the reluctant approval of Governor Hicks, ordered the destruction of bridges on the railroads from Philadelphia and Harrisburg. Secessionists also tore down telegraph lines from Washington through Maryland. The national capital was cut off from the North. For several days, rumors were the only form of information reaching Washington. They grew to alarming proportions. Virginia regiments and armed Maryland secessionists were said to be converging on the capital. Washington was gripped by a seige mentality. Citizen's groups and government clerks formed themselves into volunteer companies. At General Scott's orders, these units sandbagged and barricaded public buildings and prepared the imposing Treasury edifice for a last-stand defense.

Reports filtered through of an aroused North and of more regiments determined to fight their way through Maryland at any cost. But the rumors of an impending attack by Virginians seemed more real than the hope of rescue from the North. Lincoln looked wistfully out of the northern windows of the White House and murmured, "Why don't they come?" On April 24 he visited the officers and wounded men of the 6th Massachusetts. "I don't believe there is any North," Lincoln gloomily told the soldiers. "The New York 7th Regiment is a myth. Rhode Island is not known in our geography any longer. You are the only Northern realities."

But next day a troop train carrying the crack New York 7th puffed into Washington, followed by more trains bearing additional regiments from northeastern states. They had arrived over a circuitous route via Annapolis under the command of Benjamin F. Butler, who thereby achieved one of the few military successes of his contentious career. A clever lawyer and shrewd politician whose paunchy physique, balding head, drooping mustache, and cocked left eye gave him a shifty appearance that matched his personality, Butler was a Massachusetts Democrat who saw the way the wind was blowing and became a Republican. From Governor Andrew he had wrested an appointment as brigadier general of the militia that Andew had mobililized upon Lincoln's call for troops. The 6th Massauchessets had been the first regiment of this brigade to leave for Washington. When Butler, following with the 8th Massachusetts, learned of the riot in Baltimore and the burning of railroad bridges, he detrained the 8th at the head of Chesapeake Bay, commandeered a steamboat, and landed the regiment at Annapolis. The 8th Massachusetts contained several railwaymen and mechanics in its ranks. Finding that secessionists had ripped up tracks and destroyed rolling stock on the line from Annapolis to Washington, Butler called for volunteers to repair the rusting derelict of a locomotive he found in the Annapolis yards. A private stepped forward: "That engine was made in our shop; I guess I can fix her up and run her." Setting a pattern for the feats of railroad construction that helped the North win the war, Butler's troops and the 7th New York reopened the line over which thousands of northern soldiers poured in Washington.

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In the follow up to the story of the Baltimore riots, I am about to narrate one of the most contentious issues of the entire American Civil War, and one that still has repercussions even today: Lincoln's suspension of habeas corpus, the challenge to this by Justice Taney, and the government's decision to ignore Judge Taney's ruling. I will narrate the facts, but I'm hoping that some lawyers and constitutional experts will weigh in here: Yankee? Christo? Anyone? All are welcome, of course.

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Tim/BL- great stuff. Tim- what is it that you do for a living again?? And are you there whilst putting this together?

Commercial real estate agent. And most of this stuff I prepare in the evening, and post it when I can.
Okay. I missed that. Please do carry on.:confused:
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Lincoln vs. Taney, Part One

Although Baltimore remained tense, the buildup of Union military strength among Maryland's railroads an a declaration of martial law in the city on May 13 dampened secession activities. Nevertheless, Governor Hicks succumbed to pressures to call the legislature into session. Lincoln considered sending troops to arrest disunionist legislators, but thought better of it. To the president's surprise, the legislature turned out to be all bark and no bite. The lower house denounced the war which "the Federal Government has declared on the Confederate States" and proclaimed Maryland's "resolute determination to have no part or lot, directly or indirectly, in its prosecution." At the same time, however, the legislature refused to consider an ordinance of secession to call a convention to do so. In effect, the legislators accepted Governor Hick's recommendation of "a neutral position between our brethren of the North and of the South."

As a means of avoiding a difficult choice, "neutrality" was a popular stance in the border states during the first weeks after Sumter. But given Maryland's strategic location and the thousands of northern soldiers stationed in the state or passing through it, neutrality soon became an impossible dream. Indigenous Maryland unionism began to assert itself. The state's economic health was based on rail and water connections with the North. President John W. Garrett of the Baltimore and Ohio Railroad was a firm unionist and offered the railroad's facilities to carry troops and supplies from the West. Unionist candidates won all 6 seats in a special congressional election on June 13. By that time the state had also organized 4 Union regiments. Marylanders who wanted to fight for the Confederacy had to depart for Virginia to organize Maryland regiments on Confederate soil.

However, Union officials continued to worry about underground Confederate activities in Baltimore. Army officers overreacted by arresting a number of suspected secessionists and imprisoning them in Fort McHenry. One of those arrested was the grandson of Francis Scott Key, who had written "The Star Spangled Banner" when the fort was under British fire a half century earlier. Another was John Merryman, a wealthy landowner and lieutenant in a secessionist calvalry unit that had burned bridges and torn down telegraph wires during the April troubles. Merryman's lawyer petitioned the federal circuit court in Baltimore for a writ of habeas corpus. The senior judge of this court was none other than Roger B. Taney, who on May 26 issued a writ ordering the the commanding officer at Fort McHenry to bring Merryman before the court to show cause for his arrest. The officer refused, citing Lincoln's April 17 suspension of the writ of habeas corpus in portions of Maryland.

This confrontation became the first of several celebrated civil liberties cases during the war.

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Lincoln vs. Taney, Part Two

Article I, Section 9 of the Constitution stipulates that the privilege of the writ of habeus corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In a circuit court ruling on May 28, Taney denied the president's right to suspend the writ. The provision authorizing the suspension, he pointed out, appears in the article of the Constitution specifying the powers of Congress; therefore, only Congress can exercise this power. Moreover, Taney continued, the Constitution does not authorize the arrest of citizens by army officers without the sanction of civil courts, nor does it permit a citizen to be held in prison indefinitely without trial.

The Republican press denounced Taney's opinion as a new species of proslavery sophistry. Lincoln refused to obey it. Several prominent constitutional lawyers rushed into print to uphold the legality of Lincoln's position. The particular location of the habeas corpus clause in the Constitution was irrelevant, they maintained; suspension was an emergency power to be exercised in case of rebellion; the president was the only one who could act quickly in an emergency, especially when Congress was not in session. The whole purpose of suspending the writ, said these legal scholars, was to enable army officers to arrest and detain without trial suspected traitors when civil authorities and courts were potentially sympathetic with treason, as in Baltimore.

In his message to the special session on Congress on July 4, 1861, Lincoln took note of the Merryman case. The president considered his primary duty to be the supression of rebellion so that the laws of the United States could be executed in the South. Suspension of the writ was a vital weapon against rebellion. "Are all the laws, but one (the right of habeas corpus) to gun unexecuted," asked the president rhetorically, "and the government itself go to pieces, lest that one be violated?"

Whatever the respective merits of Taney's and Lincoln's positions, Taney commanded no troops and could not enforce his position, while Lincoln did and could. Merryman was released after 7 weeks at Fort McHenry and indicted in the U.S. Circuit Court, but his case never came to trial because the government knew that a Maryland jury would not convict him. While lawyers continued to argue, the army arrested the Baltimore police chief, 4 police commissioners, and several prominent citizens for their roles in the April 19 riot and their alleged continuing subversive activities. More was yet to come.

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OK, so here are my three questions for anyone who's willing to venture an opinion:

1. Based on the Constitution, who's right here, Lincoln or Taney?

2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?

3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?

Looking forward to some commentary.

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A fun little quiz to introduce tonight's subject:

What Kind of Zouave Are You?

American Civil War Zouave Regiments

ZOUAVE (zoo-ahh-vah) was the name given to native North African troops employed by the French Army as fighters and mercenaries. Their dash, spirit, and heroic style of warfare caught the fancy of many military observers worldwide in the 1800's. In Italy the Papal States formed a Papal Brigade; Poland organised the Zouaves of Death, who vowed to 'conquer or die'; and on the Crimean penisula, a young U.S. Army Captain observing the war of 1854-55, George McClellan, praised the Zouaves as "The finest light infantry that Europe can produce....the beau-ideal of a soldier."

Despite the far-flung fame of the French Zouaves, it is unlikely that the gaudy uniforms of those exotic soldiers would have found such widespread popularity in the American Civil War had it not been for Elmer Ephraim Ellsworth. As a New York youth he struggled to support his impoverished family by selling newspapers and clerking at a dry-goods store, his hope of attending West Point a pipe-dream. When he was 17 years old, Ellsworth moved to Chicago. Though unsuccessful in business, he began to rise to prominence in the State Militia.

In 1857 a chance encounter with Charles DeVilliers, a veteran of the French Zouaves, prompted Ellsworth to explore the intricacies of French light infantry drill, and he began considering the possibility of forming an American Zouave unit. After a brief period studying law in the Springfield office of Abraham Lincoln - who became a lifelong friend - Ellsworth returned to Chicago where he transformed a lackluster local militia outfit into the ""United States Zouave Cadets." Ellsworth required that his hand-picked volunteers be "morally upright," abstain from alcohol and tobacco, and subjected them to a strict regimen of physical training. He outfitted his Cadets in a Zouave uniform of his own design, and drilled them in tactics he had adapted from French manuals.

Though short of stature, Ellsworth was a striking, athletic figure, who exuded authority. He was an ideal drillmaster, and by the summer of 1860 his U.S. Zouave Cadets of Chicago were being hailed as the finest militia unit in the Midwest.

Not content to rest on his laurels, Ellsworth issued a blanket challenge to the State Militias of a dozen states: That his Zouaves would compete against them in drill competition for the prize of a specially commissioned flag. On July 2, 1860, Ellsworth and 50 of his best men embarked on a six-week tour that took them to 20 cities, including Detroit, Cleveland, Boston, Pittsburgh and Baltimore. The Zouaves humbled their competitors and awed thousands of spectators who came to watch their superbly choreographed exhibitions, while the handsome commander became an overnight celebrity. Newspapers described Ellsworth as "the most talked-of man in the country."

The high point of the tour came in New York City, where tens of thousands gathered to watch the Zouaves drill in City Hall Park, and local journals were effusive in their praise. The New York Times noted "Their bronzed features, sharp outlines, light, wiry forms, muscular developments and spirited, active movements, give them an appearance of dashing ferocity." The Herald hailed the Zouaves' "dashing confidence and elasticity, which we do not see in any of our own companies... Every movement of the company was so splendidly precise, that a new sensation indeed was experienced." By the time the Zouave Cadets returned to Chicago, there was no question that they had truly won the prize of best-drilled militia unit. Moreover, like a Zouave "Johnny Appleseed," Ellsworth had scattered in his wake the seeds of what became known as "The Zouave Craze."

Almost overnight dozens of American Zouave companies sprang into existence, sporting a variety of garb that in most cases owed more to Ellsworth's version of the Zouave outfit than the true French uniform.

The popularity of the cadets caught on in other areas of the nation and it was this idea that gave birth to "zouave regiments" during the American Civil War. A number of zouave regiments were organized in the North and South in 1861, modeled after the zouave regiments of North Africa and Ellsworth's Cadets. The uniforms of these regiments were very distinctive and made them stand out in camp and on the drill field. Regrettably, their bright red trousers and sashes also made them good targets on the battlefield. Never the less, a number of zouave regiments were raised, uniformed, and marched off to war to serve both sides.

Zouave uniforms were difficult to obtain in America, so manufacturers of specialty clothing were employed to make the uniforms. There were many distinct styles and colors, depending on the design submitted by the benefactor of the regiment. Friends of the organizer provided money to pay for the uniforms along with donations from the town where the regiment was organized. John M. Gosline, a prominent citizen of Philadelphia who raised the 95th Pennsylvania Volunteer Infantry ("Gosline's Zouaves"), secured sufficient funds to purchase a full set of clothing for 1,000 men with enough cash left over to insure that the uniforms could be replenished as they were worn out. When the uniforms of the 114th Pennsylvania Infantry began to wear out, Colonel Charles Collis used his influence with political friends in the state legislature to secure state money to supply new uniforms to those men who needed them. Despite these efforts, a zouave regiment only retained its distinctive dress if the men repaired their clothing and the distinctive zouave uniforms slowly disappeared from the army as time passed. By the time of the Battle of Gettysburg, many of these regiments had lost or worn out their original uniforms and adopted the standard Union uniform. Still, there were a handful of regiments that still had a portion of the zouave uniform- the jacket- such as the 23rd Pennsylvania Infantry and the 95th Pennsylvania Infantry.

Even though many original zouave regiments had gone to standard Union uniforms, there some Union regiments that became zouave regiments. The 146th New York Infantry did not start the service in zouave uniforms, but adopted them in June 1863 jus before the Gettysburg Campaign began. Some of the other regiments in that brigade, including the 140th New York and 155th Pennsylvania Infantry, adopted zouave uniforms later in the war.

A unique presence in zouave regiments was the vivandiere (vi-van-de-air). This was a special person in the regiment because they were female and dressed in a uniform similar to the men. Many zouave regiments had vivandieres who performed a variety of duties, most notably nursing on the battlefield. Mary Tepe, or "French Mary" as she was called, was the vivandiere of the 114th Pennsylvania Infantry. Mary was present on almost every battlefield where the regiment fought and acted as a battlefield nurse and aide. She carried water and bandages into battle and was wounded during the war. Mary was present with the regiment at Gettysburg and was one of the few women with the army to ever experience combat. Her regiment, the 114th Pennsylvania Infantry or "Collis' Zouaves", were one of the more well known zouave regiments of the war, heralded for their precision on the drill field dressed in flashy zouave-style uniforms featuring bright red trousers, white leggings, blue jacket, and red fez. The 114th fought in almost every major battle of the Army of the Potomac, including Gettysburg. In 1864, the regiment was appointed headquarters guard for General Meade. One of the original uniforms that belonged to a solder of the 114th Pennsylvania is currently on display at the Chancellorsville Battlefield Visitor Center at Fredericksburg & Spotsylvania National.

Finally, some of you might be familiar with this zouave image, and didn't even know what it was.

Back to young Mr. Ellsworth.

Bored with the study of law, the 24-year-old Ellsworth welcomed the coming of War, and after traveling to Washington with his friend, newly elected President Lincoln, he hastened to New York to raise an entire regiment of Zouaves for the Union. He called upon Manhattan's Volunteer Firemen, whose physical fitness and intrepid bearing seemingly qualified them as ideal volunteer soldiers, and within days the 11th New York Infantry - "Ellsworth's Fire Zouaves" - were mustered, hastily uniformed in a light-weight gray uniform of Ellsworth's design, issued a variety of firearms, and ready to embark for the defense of the Capital.

Their parade down Broadway on April 29, 1861, was a frenzy of patriotic enthusiasm, and on their arrival in Washington the Fire Zouaves received a personal welcome from Abraham Lincoln. The President's Secretary, John Hay, described the Zouaves as "a jolly, gay set of blackguards," who "were in a pretty complete state of don't care a damn, modified by an affectionate and respectful deference to their Colonel." In fact, Colonel Ellsworth had his hands full attempting to discipline and train the rowdy, hard-drinking and boisterous firemen. Their antics and occasional depredations made them few friends in the Capital, and it was in part to redeem the reputation of his "Pet Lambs" - as Ellsworth ironically dubbed his troublesome soldiers - that the Colonel insisted his unit be assigned to the Federal force preparing to occupy the Virginia shore of the Potomac River. In large part due to his friendship with the President and Lincoln family, Ellsworth and his Fire Zouaves were belatedly included in the invasion plans. Lincoln had observed from the White House a large Confederate flag prominently displayed in the neighboring town, and Ellsworth offered to retrieve the offending flag for him.

On the early morning of May 24, 1861, they filed aboard steamships and crossed the Potomac to seize the town of Alexandria, Virginia. After landing at the city docks, Colonel Ellsworth led a small detail of men in search of Alexandria's telegraph office. Upon reaching the corner of King and Pitt Streets, he spotted the huge Secessionist banner fluttering atop a 30-foot pole on the roof of the Marshall House hotel. "Boys," Ellsworth told his companions, "we must have that flag!"

Ascending to the roof, Ellsworth cut the halyards and hauled down the Stars and Bars. With Corporal Francis E. Brownell in the lead, the group of Zouaves were descending the hotel stairway when all of a sudden a burly civilian stepped from the shadows and leveled a shotgun at Colonel Ellsworth, who was preoccupied with folding the captured banner. The man was James W. Jackson -- innkeeper of the Marshall House -- who had sworn to kill any man who attempted to take his flag. Corporal Brownell attempted to knock Jackson's weapon aside, but stumbled on the steps and the shotgun roared out -- the shot tearing into Ellsworth's heart. As the Colonel sprawled down the steps, Brownell rose and fired, his bullet striking Jackson in the face. The innkeeper's second barrel went off as he toppled backward, Brownell following up his shot with a bayonet thrust into the dying Secessionist.

Elmer Ellsworth had been instantly killed, and the Union had its first Martyr of the Civil War.

Devastated by the loss of his young protogé, Abraham Lincoln ordered that Ellsworth's body lie in state in the East Room of the White House. "Avenge Ellsworth!" became a Northern battle-cry, and the death of the charismatic founder of the "Zouave Craze" spurred even more volunteers to don the flashy attire Ellsworth had championed. Dozens of Zouave units would fight on the battlefields of that war, from Bull Run to Appomattox.

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OK, so here are my three questions for anyone who's willing to venture an opinion:1. Based on the Constitution, who's right here, Lincoln or Taney?2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?3. Whether or not Taney is right, does the President have the right simply to ignore him? Looking forward to some commentary.

1. Taney2. NA3. Sure. Andrew Jackson did exactly that to John Marshall, Chief Justice of the Supreme Court, in Worcester v. Georgia. Probably wouldn't happen today, but we're not talking about today.Congress could probably have voted for impeachment, but that Congress wasn't going to. Edited by TexanFan02
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OK, so here are my three questions for anyone who's willing to venture an opinion:1. Based on the Constitution, who's right here, Lincoln or Taney?2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?Looking forward to some commentary.

1. Lincoln2. Yes, there are limits.3. Yes, the President can and has many times in our history ignored the Supreme Court and the federal courts. Lincoln didn't commit a crime in ignoring Taney's decision and there was no basis to impeach him.
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Ex Parte Merryman

To begin, Taney wasn't the senior judge of the distrcit court. When the Supreme Court was not in session, the Justices sat on the federal district courts. As Chief Justice, Taney sat on the federal distrcit court in the Baltimore Maryland area. The case itself was a federal case, but not a Supreme Court case.

John Marryman was a soldier in the Maryland militia who used his position and access to federal supplies and monies as a recruiting tool to get Maryland citizens to join confederate units in Virginia. In doing so he committed a serious offense bordering on treason. And then we have Roger Taney an avowed political opponet of Abraham Lincoln and terrible jurist whose time served on the Court is a black mark on our history and who tried to use his position as Chief Justice to undermine the Lincoln administration during the Civil War. The vitriol shines through in the holding which is one of the worse ones he wrote. Taney was nothing if not consistent in using his opinion to shape law.


Circuit Court, D. Maryland.

April Term, 1861.


1. On the 25th May 1861, the petitioner, a citizen of Baltimore county, in the state of Maryland, was arrested by a military force, acting under orders of a majorgeneral of the United States army, commanding in the state of Pennsylvania, and committed to the custody of the general commanding Fort McHenry, within the district of Maryland; on the 26th May 1861, a writ of habeas corpus was issued by the chief justice of the United States, sitting at chambers, directed to the commandant of the fort, commanding him to produce the body of the petitioner before the chief justice, in Baltimore city, on the 27th day of May 1861; on the lastmentioned day, the writ was returned served, and the officer to whom it was directed declined to produce the petitioner, giving as his excuse the following reasons: 1. That the petitioner was arrested by the orders of the majorgeneral commanding in Pennsylvania, upon the charge of treason, in being 'publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government.' 2. That he (the officer having the petitioner in custody) was duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus for the public safety. Held, that the petitioner was entitled to be set at liberty and discharged immediately from confinement, upon the grounds following: 1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the law of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. [Approved in Re Kemp, 16 Wis. 367.]

2. Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ. [Cited in Ex parte Field, Case No. 4,761; McCall v. McDowell, Id. 8,673.]

Habeas corpus. On the 26th May 1861, the following sworn petition was presented to the chief justice of the United States, on behalf of John Merryman, then in confinement in Fort McHenry:

'To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States: The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a. m., on the 25th day of May, A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of of constitution and laws of the United States, of which he is a citizen. That since his arrest, he has been informed, that some order, purporting to come from one General Keim, of Pennsylvania, to this petitioner unknown, directing the arrest of the captain of some company in Baltimore county, of which company the petitioner never was and is not captain, was the pretended ground of his arrest, and is the sole ground, as he believes, on which he is now detained. That the person now so detaining him at said fort is BrigadierGeneral George Cadwalader, the military commander of said post, professing to act in the premises under or by color of the authority of the United States. Your petitioner, therefore, prays that the writ of habeas corpus may issue, to be directed to the said George Cadwalader, commanding him to produce your petitioner before you, judge as aforesaid, with the cause, if any, for his arrest and detention, to the end that your petitioner be discharged and restored to liberty, and as in duty, & c. John Merryman. Fort McKenry, 25th May 1861.

'United States of America, District of Maryland, to wit: Before the subscriber, a commissioner appointed by the circuit court of the United States, in and for the Fourth circuit and district of Maryland, to take affidavits, & c., personally appeared the 25th day of May, A. D. 1861, Geo. H. Williams, of the city of Baltimore and district aforesaid, and made oath on the Holy Evangely of Almighty God, that the matters and facts stated in the foregoing petition are true, to the best of his knowledge, information and belief; and that the said petition was signed in his presence by the petitioner, and would have been sworn to by him, said petitioner, but that he was, at the time, and still is, in close custody, and all access to him denied, except to his counsel and his brother inlawthis deponent being one of said counsel. Sworn to before me, the 25th day of May, A. D. 1861. John Hanan, U. S. Commissioner.

'United States of America, District of Maryland, to wit: Before the subscriber, a commissioner appointed by the circuit court of the United States, in and for the Fourth circuit and district of Maryland, to take affidavits, & c., personally appeared this 26th day of May, 1861, George H. Williams, of the city of Baltimore and district aforesaid, and made oath on the Holy Evangely of Almighty God, that on the 26th day of May, he went to Fort McHenry, in the preceding affidavit mentioned, and obtained an interview with Gen. Geo. Cadwalader, then and there in command, and deponent, one of the counsel of said John Merryman, in the foregoing petition named, and at his request, and declaring himself to be such counsel, requested and demanded that he might be permitted to see the written papers, and to be permitted to make copies thereof, under and by which he, the said general, detained the said Merryman in custody, and that to said demand the said Gen. Cadwalader replied, that he would neither permit the deponent, though officially requesting and demanding, as such counsel, to read the said papers, nor to have or make copies thereof. Sworn to this 26th day of May, A. D. 1861, before me. John Hanan, U. S. Commissioner for Maryland.'

Upon this petition the chief justice passed the following order:

'In the matter of the petition of John Merryman, for a writ of habeas corpus: Ordered, this 26th day of May, A. D. 1861, that the writ of habeas corpus issue in this case, as prayed, and that the same be directed to General George Cadwalader, and be issued in the usual form, by Thomas Spicer, clerk of the circuit court of the United States in and for the district of Maryland, and that the said writ of habeas corpus be returnable at eleven o'clock, on Monday, the 27th of May 1861, at the circuit court room, in the Masonic Hall, in the city of Baltimore, before me, chief justice of the supreme court of United States. R. B. Taney.'

In obedience to this order, Mr. Spicer issued the following writ:

'District of Maryland, to wit: The United States of America, to General George Cadwalader, Greeting: You are hereby commanded to be and appear before the Honorable Roger B. Taney, chief justice of the supreme court of the United States, at the United States courtroom, in the Masonic Hall, in the city of Baltimore, on Monday, the 27th day of May 1861, at eleven o'clock in the morning, and that you have with you the body of John Merryman, of Baltimore county, and now in your custody, and that you certify and make known the day and cause of the caption and detention of the said John Merryman, and that you then and there, do, submit to, and receive whatsoever the said chief justice shall determine upon concerning you on this behalf, according to law, and have you then and there this writ. Witness, the Honorable R. B. Taney, chief justice of our supreme court, &c. Thomas Spicer, Clerk. Issued 26th May 1861.'

The marshal made return that he had served the writ on General Cadwalader, on the same day on which it issued; and filed that return on the 27th May 1861, on which day, at eleven o'clock precisely, the chief justice took his seat on the bench. In a few minutes, Colonel Lee, a military officer, appeared with General Cadwalader's return to the writ, which is as follows:

'Headquarters, Department of Annapolis, Fort McHenry, May 26 1861. To the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, Baltimore, Md.Sir: The undersigned, to whom the annexed writ, of this date, signed by Thomas Spicer, clerk of the supreme court of the United States, is directed, most respectfully states, that the arrest of Mr. John Merryman, in the said writ named, was not made with his knowledge, or by his order or direction, but was made by Col. Samuel Yohe, acting under the orders of Major General William H. Keim, both of said officers being in the military service of the United States, but not within the limits of his command. The prisoner was brought to this post on the 20th inst., by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Col. Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government. He is also informed that it can be clearly established, that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the government, and in readiness to cooperate with those engaged in the present rebellion against the government of the United States. He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety. This is a high and delicate trust, and it has been enjoined upon him that it should be executed with judgment and discretion, but he is nevertheless also instructed that in times of civil strife, errors, if any, should be on the side of the safety of the country. He most respectfully submits for your consideration, that those who should cooperate in the present trying and painful position in which our country is placed, should not, by any unnecessary want of confidence in each other, increase our embarrassments. He, therefore, respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States, when you shall hear further from him. I have the honor to be, with high respect, your obedient servant, George Cadwalader, Brevet MajorGeneral U. S. A. Commanding.'

The chief justice then inquired of the officer whether he had brought with him the body of John Merryman, and on being answered that he had no instructions but to deliver the return, the chief justice said: 'General Cadwalader was commanded to produce the body of Mr. Merryman before me this morning, that the case might be heard, and the petitioner be either remanded to custody, or set at liberty, if held on insufficient grounds; but he has acted in disobedience to the writ, and I therefore direct that an attachment be at once issued against him, returnable before me here, at twelve o'clock tomorrow.' The order was then passed as follows:

'Ordered, that an attachment forthwith issue against General George Cadwalader for a contempt, in refusing to produce the body of John Merryman, according to the command of the writ of habeas corpus, returnable and returned before me to day, and that said attachment be returned before me at twelve o'clock tomorrow, at the room of the circuit court. R. B. Taney. Monday, May 27 1861.'

The clerk issued the writ of attachment as directed. At twelve o'clock, on the 28th May 1861, the chief justice again took his seat on the bench, and called for the marshal's return to the writ of attachment. It was as follows:

'I hereby certify to the Honorable Roger B. Taney, chief justice of the supreme court of the United States, that by virtue of the within writ of attachment, to me directed, on the 27th day of May 1861, I proceeded, on this 28th day of May 1861, to Fort McHenry, for the purpose of serving the said writ. I sent in my name at the outer gate; the messenger returned with the reply, 'that there was no answer to my card,' and therefore, I could not serve the writ, as I was commanded. I was not permitted to enter the gate. So answers Washington Bonifant, U. S. Marshal for the District of Maryland.'

After it was read, the chief justice said, that the marshal had the power to summon the posse comitatus to aid him in seizing and bringing before the court, the party named in the attachment, who would, when so brought in, be liable to punishment by fine and imprisonment; but where, as in this case, the power refusing obedience was so notoriously superior to any the marshal could command, he held that officer excused from doing anything more than he had done. The chief justice then proceeded as follows:

'I ordered this attachment yesterday, because, upon the face of the return, the detention of the prisoner was unlawful, upon the grounds: 1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law. It is, therefore, very clear that John Merryman, the petitioner, is entitled to be set at liberty and discharged immediately from imprisonment. I forbore yesterday to state orally the provisions of the consitution of the United States, which make those principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing, and file it in the office of the clerk of the circuit court, in the course of this week.'

He concluded by saying, that he should cause his opinion, when filed, and all the proceedings, to be laid before the president, in order that he might perform his constitutional duty, to enforce the laws, by securing obedience to the process of the United States.

TANEY, Circuit Justice.

The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789 [1 Stat. 81], which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus. That act gives to the courts of the United States, as well as to each justice of the supreme court, and to every district judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me, at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, in the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw General Cadwalader, who had him in charge, from the limits of his military command.

The petition presents the following case: The petitioner resides in Maryland, in Baltimore county; while peaceably in his own house, with his family, it was at two o'clock on the morning of the 25th of May 1861, entered by an armed force, professing to act under military orders; he was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.

The commander of the fort, General George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of General Keim, of Pennsylvania, and conducted as aforesaid to Fort McHenry, by his order, and placed in his (General Cadwalader's) custody, to be there detained by him as a prisoner.

A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel, and refused: and it is not alleged in the return, that any specific act, constituting any offence against the laws of the United States, has been charged against him upon oath, but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.

The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.

When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it.

Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that, upon his own responsibility, and in the exercise of his own discretion, he refused obedience to the writ, I should have contented myself with referring to the clause in the constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended, under the orders, and by the authority of the president, and believing, as I do, that the president has exercised a power which he does not possess under the constitution, a proper respect for the high office he fills, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject.

The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing 'that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; 1 and at the conclusion of this specification, a clause is inserted giving congress 'the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.'

The power of legislation granted by this latter clause is, by its words, carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles, essential to the liberty of the citizen, and to the rights and equality of the states, by denying to congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted, under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined, that there should be no room to doubt, where rights of such vital importance were concerned; and accordingly, this clause is immediately followed by an enumeration of certain subjects, to which the powers of legislation shall not extend. The great importance which the framers of the constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact, that its suspension, except in cases of invasion or rebellion, is first in the list of prohibited powers; and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.

It is true, that in the cases mentioned, congress is, of necessity, the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the libery of a citizen.

It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

The article begins by declaring that the executive power shall be vested in a president of the United States of America, to hold his office during the term of four years; and then proceeds to prescribe the mode of election, and to specify, in precise and plain words, the powers delegated to him, and the duties imposed upon him. The short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehension of future danger which the framers of the constitution felt in relation to that department of the government, and how carefully they withheld from it many of the powers belonging to the executive branch of the English government which were considered as dangerous to the liberty of the subject; and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the government.

He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office; he is, from necessity, and the nature of his duties, the commanderinchief of the army and navy, and of the militia, when called into actual service; but no appropriation for the support of the army can be made by congress for a longer term than two years, so that it is in the power of the succeeding house of representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the president used, or designed to use it for improper purposes. And although the militia, when in actual service, is under his command, yet the appointment of the officers is reserved to the states, as a security against the use of the military power for purposes dangerous to the liberties of the people, or the rights of the states.

So too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the senate, and cannot appoint even inferior officers, unless he is authorized by an act of congress to do so. He is not empowered to arrest any one charged with an offence agaisnt the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person 'shall be deprived of life, liberty or property, without due process of law'that is, judicial process.

Even if the privilege of the writ of habeas corpus were suspended by act of congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison, or brought to trial before a military tribunal, for the article in the amendments to the constitution immediately following the one above referred to (that is, the sixth article) provides, that 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.'

The only power, therefore, which the president possesses, where the 'life, liberty or property' of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires 'that he shall take care that the laws shall be faithfully executed.' He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the government to which that duty is assigned by the constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. $With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.

Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for selfdefence in times of tumult and dnager. The government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.'

Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the amendments to the constitution, which I have before quoted, is nothing more than a copy of a like provision in the English constitution, which had been firmly established before the declaration of independence. Blackstone states it in the following words: 'To make imprisonment lawful, it must be either by process of law from the courts of judicature, or by warrant from some legal officer having authority to commit to prison.' 1 Bl. Comm. 137.

The people of the United Colonies, who had themselves lived under its protection, while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen, against executive encroachment and oppression, they would have conferred on the president a power which the history of England had proved to be dangerous and oppressive in the hands of the crown; and which the people of England had compelled it to surrender, after a long and obstinate struggle on the part of the English executive to usurp and retain it.

The right of the subject to the benefit of the writ of habeas corpus, it must be recollected, was one of the great points in controversy, during the long struggle in England between arbitrary government and free institutions, and must therefore have strongly attracted the attention of the statesmen engaged in framing a new and, as they supposed, a freer government than the one which they had thrown off by the revolution. From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ of habeas corpus, to bring his case before the king's bench; if no specific offence were charged against him in the warrant of commitment, he was entitled to be forthwith discharged; and if an offence were charged which was bailable in its character, the court was bound to set him at liberty on bail. The most exciting contests between the crown and the people of England, from the time of Magna Charta, were in relation to the privilege of this writ, and they continued until the passage of the statute of 31 Car. II., commonly known as the great habeas corpus act.

This statute put an end to the struggle, and finally and firmly secured the liberty of the subject against the usurpation and oppression of the executive branch of the government. It nevertheless conferred no new right upon the subject, but only secured a right already existing; for, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the statute of 13 Wm. III., the judges held their offices at the pleasure of the king, and the influence which he exercised over timid, timeserving and partisan judges, often induced them, upon some pretext or other, to refuse to discharge the party, although entitled by law to his discharge, or delayed their decision, from time to time, so as to prolong the imprisonment of persons who were obnoxious to the king for their political opinions, or had incurred his resentment in any other way.

The great and inestimable value of the habeas corpus act of the 31 Car. II. is, that it contains provisions which compel courts and judges, and all parties concerned, to perform their duties promptly, in the manner specified in the statute.

A passage in Blackstone's Commentaries, showing the ancient state of the law on this subject, and the abuses which were practised through the power and influence of the crown, and a short extract from Hallam's Constitutional History, stating the circumstances which gave rise to the passage of this statute, explain briefly, but fully, all that is material to this subject.

Blackstone says: 'To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society, and in the end would destroy all civil liberty by rendering its protection impossible. But the glory of the English law consists in clearly defining the times, the causes and the extent, when, wherefore and to what degree, the imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made, that the court, upon a habeas corpus, may examine into its validity, and according to the circumstances of the case, may discharge, admit to bail or remand the prisoner. And yet early in the reign of Charles I. the court of kings bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined that they would not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king or by the lords of the privy council. This drew on a parliamentary inquiry, and produced the 'Petition of Right' (3 Car. I.) which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of 'notable contempts, and stirring up sedition against the king and government,' the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable; and when at length they agreed that it was, they however annexed a condition of finding sureties for their good behavior, which still protracted their imprisonment, the chief justice, Sir Nicholas Hyde, at the same time, declaring that 'if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment.' But this was heard with indignation and astonishment by every lawyer present, according to Mr. Selden's own account of the matter, whose resentment was not cooled at the distance of four and twenty years.' 3 Bl. Comm. 133, 134.

It is worthy of remark, that the offences charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, and in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr. Selden. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject that the delay of the timeserving judges to set him at liberty, upon the habeas corpus issued in his behalf, excited the universal indignation of the bar.

The extract from Hallam's Constitutional History is equally impressive and equally in point: 'It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, to suppose that this statute of Car. II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of king's bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta (if indeed it is not more ancient), that the statute of Car. II. was enacted, but to cut off the abuses by which the government's lust of power, and the servile subtlety of the crown lawyers, had impaired so fundamental a privilege.' 3 Hall. Const. Hist. 19.

While the value set upon this writ in England has been so great, that the removal of the abuses which embarrassed its employment has been looked upon as almost a new grant of liberty to the subject, it is not to be wondered at, that the continuance of the writ thus made effective should have been the object of the most jealous care. Accordingly, no power in England short of that of parliament can suspend or authorize the suspension of the writ of habeas corpus. I quote again from Blackstone (1 Bl. Comm. 136): 'But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient. It is the parliament only or legislative power that, whenever it sees proper, can authorize the crown by suspending the habeas corpus for a short and limited time, to imprison suspected persons without giving any reason for so doing.' If the president of the United States may suspend the writ, then the constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the crown; a power which the queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.

But I am not left to form my judgment upon this great question, from analogies between the English government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Constitution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the supreme court of the United States; and also the clear and authoritative decision of that court itself, given more than half a century since, and conclusively establishing the principles I have above stated.

Mr. Justice Story, speaking, in his Commentaries, of the habeas corpus clause in the constitution, says: 'It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused, in bad times, to the worst of purposes. Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus, in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.' 3 Story, Comm. Const. s 1336.

And Chief Justice Marshall, in delivering the opinion of the supreme court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch [8 U. S.] 95: 'It may be worthy of remark, that this act (speaking of the one under which I am proceeding) was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.' And again on page 101: 'If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.' I can add nothing to these clear and emphatic words of my great predecessor.

But the documents before me show, that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, 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 had against John Merryman, the district judge of Maryland, the commissioner appointed under the act of congress, the district attorney and the marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time, there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States, in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offence against the laws of the United States, it was his duty to give information of the fact and the evidence to support it, to the district attorney; it would then have become the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him; and upon the hearing of the case, would have held him to bail, or committed him for trial, according to the character of the offence, as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military.

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 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.

The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. 2

In such a case, my duty was too plain to be mistaken. I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

---- Begin EndNotes ----

1 From 9 Am. Law Reg. 524.

2 The constitution of the United States is founded upon the principles of government set forth and maintained in the Declaration of Independence. In that memorable instrument the people of the several colonies declared, that one of the causes which 'impelled' them to 'dissolve the political bands' which connected them with the British nation, and justified them in withdrawing their allegiance from the British sovereign, was that 'he (the king) had affected to render the military independent of, and superior to, the civil power.'

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3. Yes, the President can and has many times in our history ignored the Supreme Court and the federal courts. Lincoln didn't commit a crime in ignoring Taney's decision and there was no basis to impeach him.

I realize that, practically speaking, presidents have ignored the courts (Jackson and Marshall probably the most famous example, as Texan points out.) But according to the Constitution, that's not supposed to happen, right?
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OK, so here are my three questions for anyone who's willing to venture an opinion:

1. Based on the Constitution, who's right here, Lincoln or Taney?

2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?

3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?

Looking forward to some commentary.

1. Lincoln

2. Yes, there are limits.

3. Yes, the President can and has many times in our history ignored the Supreme Court and the federal courts. Lincoln didn't commit a crime in ignoring Taney's decision and there was no basis to impeach him.

Playing devil's advocate here a little: you say there are limits. But you also say it's OK for the president to ignore the courts. Therefore, there really are no limits, right? In a crisis the president can pretty much do away with the Bill of Rights, and who's going to stop him?
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I will narrate the facts, but I'm hoping that some lawyers and constitutional experts will weigh in here: Yankee? Christo? Anyone? All are welcome, of course.

Lincoln absolutely had the authority to suspend the writ protection. Missing in the Merryman dialogue that occurrs is the fact that Taney didn't have the authority to order the military to bring someone before them in contradiction to an order of the President of the United States. Without an actual accused before him or case properly laid with the court, Taney basically announced to anyone that would listen that he was going to hold a ex parte hearing and issue his grand ruling. I'm almost positive he alerted the local press as well so that they would cover the great Roger Taney giving Presdient Lincoln a lesson on Constitutional law.The backdrop of the "case" is important as well. With Virginia loyal to the rebellion and Maryland close to getting there at the time, or at least feared to be, the main supply line and transport hub into the nation's capital was in the hands of the rebellion. The nation's central power hub would be blockaded from land and sea by the rebellion and cut off from the rest of the country. With that as backdrop the military had to seize control of the railroad into the capital as not only an important doemstic enterprise to ensure the stability of the nation, but as a military requirement to protect the chain of command.Any argument that the President of the United States does not have the authority to protect the nation's capital in times of rebellion by using military force in this manner is simply unconvincing. As it was, Taney had to twist all forms of logic and law to get to his great holding. Knowing he didn't actually have a case in front of him when he wrote his ruling he turned the entire thing into a battle between congressional and presidential war powers. He didn't take into account the manner in which the arrest was made and the reasons for it. And given the method of execution of the war powers, the actual reason for the act - the reasonableness of it - is very much an important matter to consider.By 1863 Congress passed the Habeas Corpus ACt and retroactively approved of Lincoln's actions. This retroactive appplication of congressional approval or a war power method is just about standard operating procedure given the varying levels of war powers by the executive and Congress. The better argument against habeas suspensions actually occurrs after this first round, when Secretary Stanton issued his proclamations with PResidential approval in 1862.
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OK, so here are my three questions for anyone who's willing to venture an opinion:

1. Based on the Constitution, who's right here, Lincoln or Taney?

2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?

3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?

Looking forward to some commentary.

1. Lincoln

2. Yes, there are limits.

3. Yes, the President can and has many times in our history ignored the Supreme Court and the federal courts. Lincoln didn't commit a crime in ignoring Taney's decision and there was no basis to impeach him.

Playing devil's advocate here a little: you say there are limits. But you also say it's OK for the president to ignore the courts. Therefore, there really are no limits, right? In a crisis the president can pretty much do away with the Bill of Rights, and who's going to stop him?
History has your answer and you will get there in this very thread. incoln suspended the writ of habeas corpus several times during the war. To my knowledge the Supreme Court has never officially held that these acts were unconstitutional in any way. Congress retroactively endorsed the round of suspensions with a new law. After the fallout of Stanton's proclamation the actual number of arrests outside of known emergency hot zones diminished. In 1866, the Supreme Court heard an anciilary case of Ex Parte Milligan which held that the trial of citizens in military tribunals when the civil system in opertaing and functioning properly is unconstitutional. This is was a stepping back in practical terms of the habeas decisions made during the war. Further in that case the Court actually held that the suspension of habeas is a lawful act but, unlike Taney, also went further to basically say that the facts and circumstances matter.

Milligan's arrest occurred after the HCA of 1862 and therefore was lawful under federal law. The problem was the writ doesn't apply to an actual trial, just to the holding. So the Court found a way to protect the civil liberty and the war power at the same time.

In all that is your answer. No President is a dictator. And the acts of the executive in the sphere of war powers require congressional oversight and approval at some point. This is true today. But the judiciary does have some minor oversight powers as well. And the acts fo the executive must be reasonable under the circumstances. The actual review of the actions and the support or denial by Congress can and does happen after the fact, but the safeguard is there. As for the Article III courts having actual enforcement power - they don't. In the end, the Supreme Court cannot require any act of any kind. It requires the Congress and the PResident to codify and or enforce it's holdings in various ways. That doesn't change the war powers in any great manner because in the end the judiciary has no war powers. They lie with the President and Congress.

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Ex Parte Merryman

I've got to be honest, I did not read much of this post. It's too early for that much reading.

Although this pre-dates this discussion by about 40 years, there was a ground breaking here in Charleston that has some relevance to this thread's early parts:

Groundbreaking for Vesey monument

In an event sure to rekindle the racially polarized debate over Denmark Vesey's place in history, a site in Hampton Park was dedicated Monday for a monument to the man hanged for plotting a slave rebellion in Charleston.

To the local politicians, religious leaders and historians at the event, Vesey was a civil rights leader acting on a universal desire for justice that unites all people. Monument designer Ed Dwight favorably compared Vesey to Dr. Martin Luther King Jr.

But this is Charleston, where the hanging of a portrait of Vesey in the municipal auditorium in 1976 -- more than 150 years after Vesey was himself publicly hanged -- prompted much criticism, and the theft of the painting.

"It was very controversial," College of Charleston history professor Bernard Powers Jr. said. "People were writing to The News and Courier expressing outrage that the portrait of a criminal could be hung in a public place."

The painting was returned, and more securely mounted, after Charleston Mayor Joe Riley said the city would commission a replacement if the painting remained missing.

Powers, a member of the committee planning the Vesey monument, said he smiles every time he sees the painting.

In Hampton Park on Monday, in a clearing not far behind the large gazebo on Mary Murray Boulevard, the Rev. Joseph Darby acknowledged both the strong feelings about Vesey and the day's chilly weather in his opening comments.

"God ordered this weather for everyone who said it would be a cold day before there was a statue for Denmark Vesey in Charleston," Darby said.

Riley described Vesey as an important civil rights figure, part of the "substantially untold story of African-American history and life in this community and this country, and their role in building America."

"We tell these untold stories so the truth will set us free," the mayor said.

Vesey and 34 other alleged conspirators were hanged in the summer of 1822. Vesey was convicted of plotting a bloody uprising in Charleston, in which enslaved blacks and freed men like himself would take up arms and slaughter the white residents, and then flee to Haiti.

Vesey had purchased his freedom after winning a lottery.

Whether Vesey actually plotted an uprising remains a question debated by historians, with little to go upon but spotty records of the trial. Much of the evidence was testimony from slaves who were rewarded financially, freed, or spared death sentences for their cooperation.

Powers said some questions are unanswered, but he believes the case has been made that Vesey did plan the uprising.

Certainly, South Carolinians had no doubt the insurrection was real.

The foiled uprising prompted the city to establish an armory and militia training ground that became The Citadel and what is now Marion Square, and restrictive laws put harsh new limits on blacks in Charleston, whether enslaved or free.

The planned Vesey monument has been in the works since 1996, with Charleston County Councilman Henry Darby leading the effort.

In 2000, the city of Charleston donated $25,000 and the land, and in 2007, County Council agreed to give $40,000.

While Monday's event was billed as a groundbreaking, Darby said there's still about $300,000 to be raised.

The "Denmark Vesey: Spirit of Freedom Monument" has been designed to feature a bronze statue of Vesey and the other ringleaders in the plotted uprising, Peter Poyas and Jack "Gullah Jack" Purcell, standing atop a 5-foot granite pedestal on a plaza.

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Missouri, Part One

The struggle for secession in Missouri was closely fought on both sides. On the Southern side stood Governor Claiborne Fox Jackson, a proslavery Democrat and onetime leader of the border ruffians. On the Northern side stood Congressman Francis P. Blair, Jr. son of Lincoln's advisor, who used his influence to secure the appointment of Captain Nathanial Lyon as commander of the U.S. arsenal in St. Louis- the largest arsenal in the slave states, with over 60,000 muskets. A Connecticut Yankee and a 20 year veteran of the army, Lyon was an intense man whose zeal and courage made him an extraordinary leader of men.

Jackson wanted secession, so did the lieutenant governor, speaker of the house, and a majority of the legislature. But they feared the majority of Missoureans did not want this, so they were reluctant to have a convention that would eventually necessitate a public referendum. Instead, Jackson, in the aftermath of Sumter, moved quickly to propel Missouri into the Confederacy. He took control of the St. Louis police and mobilized units of the pro-southern state militia, which seized a small U.S. arsenal at Liberty, near Kansas City. On April 17, the same day the governor spurned Lincoln's call for troops, he wrote to Jefferson Davis asking for artillery to assist in the capture of the St. Louis arsenal. On May 8 several large crates containing 4 cannon with ammunition arrived in St. Louis from Baton Rouge- these had been seized from the federal arsenal in that city. The artillery soon appeared in a grove on the edge of St. Louis, "Camp Jackson," where the southern militia was drilling.

Blair and Lyon matched Jackson's every move. Lyon mustered into federal service several regiments organized by the German American population, the hard core of unionism in St. Louis. But Lyon was not content to remain on the defensive. He decided to capture the 700 militiamen and artillery at Camp Jackson. On May 9 he made a personal reconnaissance by carriage through the camp disguised in a dress and shawl as Frank Blair's mother in law. The next day he surrounded Camp Jackson with 4 regiments of German Americans and 2 companies of regulars. The militia surrendered without firing a shot. As Lyon marched the prisoners through the city, a pro-secessionist mob gathered and threw rocks at the German soldiers. Then someone in the crowd shot one of the German officers, and the soldiers responded by firing into the crowd. Before it was over 28 civilians and 2 soldiers lay dead or dying, with scores more wounded. That night mobs roamed the streets and murdered several lone German Americans.

Panic reigned in St. Louis, while in the capital of Jefferson City, the legislature angrily passed Jackson's bills to place the state on a war footing. The events in St. Louis pushed many conditional unionists into the ranks of secessionists. The most prominent convert was Sterling Price, a Mexican War general and former governor, whom Jackson appointed commander of the pro-Southern militia. Missouri appeared headed for a civil war within its own borders.

Moderates made one last effort to avert fighting by arranging a June 11 conference between Jackson and Price on one side and Blair and Lyon (now a brigidier general) on the other. Jackson and Price offered to disband their regiments and prevent Confederate troops from entering Missouri if Blair and Lyon would do the same with respect to Union regiments. After 4 hours of argument about these terms, Lyon rose angrily and said:

Rather than concede to the State of Missouri for one single instant the right to dictate to my Government in any matter, I would see you and every man, woman and child in the State dead and buried. This means war!

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Missouri, Part Two

Lyon was as good as his word. Four days after this conference he occupied Jefferson City. Price's legislature and the militia abandoned the capital without resistance. They withdrew 50 miles up the Missouri River to Boonville, where Lyon relentlessly pursued and drove them from the town on June 17 after a skirmish with a few casualties. Price's defeated forces retreated all the way to the southwest corner of Missouri by early July, with the unionists close on their heels. Lyon became the North's first war hero. With little outside help he had organized, equipped, and trained an army, won the first significant Union victories of the war, and gained control of most of Missouri.

But he had stirred up a hornets' nest. Although guerilla bands would have infested Missouri in any case, the polarization of the state by Lyon's actions helped turn large areas into a no-man's land of hit-and-run raids, arson, ambush, and murder. Confederate guerilla chieftains William Quantrill, "Bloody Bill" Anderson, and George Todd became notorious bushwhackers, Their followers Jesse and Frank James and Cole and Jim Younger became even more famous- or infamous- after the war. Unionist "Jayhawker" counterinsurgency forces, especially the Kansans led by James Lane, Charles Jennison, and James Montgomery, matched the rebel bushwhackers in freebooting tactics. More than any other state, Missouri suffered the horrors of internecine warfare and the resulting hatreds which persisted for decades after Appomattox.

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Kentucky was the most evenly divided of the border states between pro-Union and pro-Confederate sympathies, and Lincoln felt he could not afford it to go South. Therefore he allowed the state to trade with the Confederacy so long as it would not become part of the Confederacy. Even though Lincoln had declared a blockade of Confederate ports, he hesitated to impose a land blockade against Kentucky lest he violate her "neutrality". Not until August 16, after state elections had shown that unionists were in firm control of Kentucky, did Lincoln issue a proclamation banning all trade with the Confederacy. Even this did not entirely halt the trade, but at least it made such commerce illegal and drove it underground.

The state could not remain "neutral". Military activities along the state's borders soon forced the new legislature to declare its allegiance. Several northern regiments wre stationed in Cairo, Illinois, at the confluence of the Ohio and Mississippi rivers. An equally large Confederate force occupied northwest Tennessee, fewer than 50 miles away. Key to the control of the Mississippi between these two forces was the high bluff at the rail terminal of Columbus, Kentucky. Both rival commanders cast covetous eyes on Columbus, and each feared- correctly- that the other intended to seize and fortify the heights there.

The Confederate commander was Leonidas Polk, tall and soldier-like in appearance, member of a distinguished southern family, a West Point graduate near the top of his class who had left the army in 1827 to enter the ministry and rise to a bishopric of the Episcopal church. When war came in 1861, he doffed his clerical robes and donned a major general's uniform. An officer of high reputation, Polk never measured up to his early military promise and did not survive the war.

The opposing Union commander was not from a distinguished family. He was slouchy and un-soldierlike in appearance. He had graduated from West Point in the lower half of his class, and had then been forced to resign from the army in disgrace for drunkenness. After spending some years failing in several civilian occupations, he volunteered to return to the army after Sumter. "I feel myself competent to command a regiment," he wrote diffidently to the adjutant general in a letter on May 24, 1861- to which he received no reply. His name- Ulysses S. Grant.

The congressman of Grant's district and the governor of Illinois were desperate for officers, and anyone with a West Point record was sought after. Grant was made a colonel and then a brigidier general and given his first command at Cairo. Still, giving this alcoholic loser a responsibilty so large was really scraping the bottom of the barrel, and it never would have happened short of an emergency. (I'll wait a little on the full bio of Grant- we'll do that when we get to his first major battle, coming up shortly.)

Polk moved first to grasp the prize of Columbus. On September 3, troops from his command entered Kentucky and occupied the the town. Grant responded by occupying Paducah and Smithland at the mouths of the strategically crucial Tennessee and Cumberland rivers. Both sides had invaded Kentucky, but by moving first the Confederacy earned the stigma of aggressor. This converted the legislature from lukewarm to warlike unionism. On September 18 the American flag rose over the capitol and legislators resolved by a 3 to 1 margin that Kentucky having been "invaded by the forces of the so-called Confederate states, the invaders must be expelled." Governor Magoffin and Senator Breckinridge resigned to cast their lot with the Confederacy. Other Kentuckians followed them. On November 18 a convention of 200 delegates passed an ordinance of secession and formed a provisional government, which the Congress at Richmond admitted as the 13th Confederate state on December 10. By the end of the year 35,000 Confederate troops occupied the southwest quarter of Kentucky, facing more than 50,000 Federals who controlled the rest of the state.

War had finally come to Kentucky. And here more than anywhere else it was literally a brothers' war. Four grandsons of Henry Clay fought for the Confederacy and three others for the Union. One of Senator John J. Crittenden's sons became a general in the Union army and the other a general in the Confederate army. The Kentucky-born wife of the president of the United States had 4 brothers and 3 brothers-in-law fighting for the South- one of them a captain killed at Baton Rouge and another a general killed at Chickamauga. Kentucky regiments fought each other on several battlefields; in the battle of Atlanta, a Kentucky Breckinridge fighting for the Yankees captured his rebel brother.

Edited by timschochet
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OK, so here are my three questions for anyone who's willing to venture an opinion:1. Based on the Constitution, who's right here, Lincoln or Taney?2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?Looking forward to some commentary.

Both. Taney's view that the power to suspend belongs solely to Congress because it's found in Article I is too simplistic because it ignores that the timeliness element involved in the case of rebellions and invasion. But it should be addressed by Congress as soon as possible. However, it took Congress almost two years to pass the Habeas Corpus Act. My problem with Lincoln was the breadth of its application in combination with subjecting civilians to military trials. Essentially, he imposed marshal law throughout the country rather than just areas directly affected by hostilities. Over 10,000 people were arrested. Most of whom posed no threat to the country.
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OK, so here are my three questions for anyone who's willing to venture an opinion:

1. Based on the Constitution, who's right here, Lincoln or Taney?

2. If Lincoln is right, are there no limits on the President's right to order an arrest in a time of rebellion or threat? Who determines when this threat is present?

3. Whether or not Taney is right, does the President have the right simply to ignore him? If you were a member of Congress, would you have voted to impeach Lincoln based on the fact that he disobeyed a federal judge? Is that, in time of war an impeachable offense?

Looking forward to some commentary.

Both. Taney's view that the power to suspend belongs solely to Congress because it's found in Article I is too simplistic because it ignores that the timeliness element involved in the case of rebellions and invasion. But it should be addressed by Congress as soon as possible. However, it took Congress almost two years to pass the Habeas Corpus Act. My problem with Lincoln was the breadth of its application in combination with subjecting civilians to military trials. Essentially, he imposed marshal law throughout the country rather than just areas directly affected by hostilities. Over 10,000 people were arrested. Most of whom posed no threat to the country.
These are fair points. I would counter the time it took Congress to act with the simple fact that unlike a foreign war where you theoretically have a fully functioning federal government, or even our current war against a countryless enemy, the civil war actually took place throughout every aspect of America, right down to the floor of the Congress for some time in the beginning. Add to that the nature of life in 19th century America with such things as travel time and the time it took to get information from point A to point B and in the end I don't think 2 years for the HCA is that long of a delay.

But, as I said previously, the better argument - as you made - against Lincoln was what ended up being an almost blanket suspension where it didn't need to be done. In that regard, the court rightfully bounced it back eventually starting with Ex Parte Milligan. I think I can make a pretty good argument that given the nature of the times and the war it wasn't that unreasonable of an act in the grand scheme, but in the end it's a far better point to debate then the initial suspension along the Baltimore transit route at the start of the war.

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West Virginia

The 35 counties of Virginia west of the Shenandoah Valley and north of the Kanawha River contained a quarter of Virginia's white population in 1860. Slaves and slaveowners were rare among these narrow valleys and steep mountainsides. The region's culture and economy were oriented to Ohio and Pennsylvania. The largest city, Wheeling, was only 60 miles from Pittsburgh but 330 miles from Richmond. For decades these Virginians, underrepresented in a legislature dominated by slaveholders, had nursed grievances against the "tidewater aristocrats" who governed the state. Slaves were taxed a less than a third of their market value while other property was taxed at full value. Thie lion's share of the state's internal improvements went to the eastern counties, while the northwest cried out in vain for more roads and railroads.

It should come as no surprise, therefore, that Wheeling used the excuse of secession to do what they had long sought: they declared themselves the new state of Kanawha, later to be known as West Virginia. This new state was of course recognized in the North, not in the South, which put both sides in a rather hypocritical situation: how could the North agree that it was OK for West Virginia to secede from Virginia, but not for Virgina to secede from the Union? Article IV, Section 3 of the Constitution states that the consent of the existing legislature is needed to form a new state from the territory of the old one. No such consent was forthcoming, and anyway the men of Wheeling considered the legislature of Richmond illegal. As for the South, how could they claim that the people of West Virginia had no right to secede from Virginia? Yet that is exactly what they did.

Union forces moved into western Virginia for strategic as well as political reasons. The Baltimore and Ohio railroad and the Ohio River ran through this region and along its border for 200 miles. The most direct rail link between Washington and the Midwest, the B & O would play an important role in Civil War logistics. In May 1861 the Confederates at Harper's Ferry had already cut the railroad while rebel militia in northwest Virgina occupied the line at Grafton and burned bridges west of there. Western Virginia unionists pleaded with Washington for troops; preoccupied with the defense of the capital, General Scott could offer little help. But across the Ohio river, Governor William Dennison sent troops under the command of three men who will all be prominent in this narrative: George B. McClellan, William S. Rosecrans, and Jacob D. Cox. Rosecrans had, like McClellan, graduated near the top of his West Point class and had gone on to a successful engineering career. Cox was an Oberlin graduate, an outstanding lawyer, a founder of the Republican party in Ohio, and a militia brigadier general. These three men organized the regiments from Ohio and Indiana. Taking command of these troops, McClellan sent a vanguard across the Ohio river on May 26 to link up with two Virgina regiments.

Their initial objective was the B & O junction at Grafton, 60 miles south of Wheeling. The colonel commanding the Confederate detachment at Grafton withdrew his outnumbered forces to Philippi, 15 miles farther south. 3,000 Union soldiers, in service for only 5 weeks, pursued with forced night marches through the rain over wretched roads at a pace that would have done credit to veteran troops. Although a planned pincer attack on the 1,500 Confederates at Philippi miscarried on June 3, the rebels fled 25 miles southward to Beverly with such haste that northern newspapers derisively labeled the affair "The Philippi Races."

On June 21, McClellan arrived at Grafton to take personal command of the campaign. In his first battle order, all written by him in a flourishing Napoleonic style and then delivered to the newspapers for publication, he wrote:

Soldiers! I have heard that there was danger here. I have come to place myself at your head and to share it with you. I fear now but one thing- that you will not find foemen worthy of your steel.

Outside of Douglas MacArthur in World War II, it is hard to find a more pompous American general than George B. McClellan. But there was a difference between the two men: MacArthur lived up to his image.

Who was George McClellan, and how did he arrive at this position? A short bio will follow.

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George Brinton McClellan

McClellan was born in Philadelphia, the son of a prominent surgical ophthalmologist, Dr. George McClellan, the founder of Jefferson Medical College. His mother was Elizabeth Steinmetz Brinton McClellan, daughter of a leading Pennsylvania family, a woman noted for her "considerable grace and refinement". The couple produced five children: a daughter, Frederica; then three sons, John, George, and Arthur; and a second daughter, Mary. George was the grandson of Revolutionary War general Samuel McClellan of Woodstock, Connecticut. He first attended the University of Pennsylvania in 1840 at age 13, resigning himself to the study of law. After two years, he changed his goal to military service. With the assistance of his father's letter to President John Tyler, young George was accepted at the United States Military Academy in 1842, the academy having waived its normal minimum age of 16.

At West Point, he was an energetic and ambitious cadet, deeply interested in the teachings of Dennis Hart Mahan and the theoretical strategic principles of Antoine-Henri Jomini. His closest friends were aristocratic Southerners such as James Stuart, Dabney Maury, Cadmus Wilcox, and A.P. Hill. These associations gave McClellan what he considered to be an appreciation of the Southern mind, an understanding of the political and military implications of the sectional differences in the United States that led to the Civil War. He graduated in 1846, second in his class of 59 cadets, losing the top position (to Charles Seaforth Stewart) only because of poor drawing skills.[5] He was commissioned a brevet second lieutenant in the U.S. Army Corps of Engineers.

McClellan's first assignment was with a company of engineers formed at West Point, but he quickly received orders to sail for the Mexican-American War. He arrived near the mouth of the Rio Grande in October 1846, well prepared for action with a double-barreled shotgun, two pistols, a saber, a dress sword, and a Bowie knife. He complained that he had arrived too late to take any part in the American victory at Monterrey in September. During a temporary armistice in which the forces of Gen. Zachary Taylor awaited action, McClellan was stricken with dysentery and malaria, which kept him in the hospital for nearly a month. The malaria would recur in later years—he called it his "Mexican disease." He served bravely as an engineering officer during the war, subjected to frequent enemy fire, and was appointed a brevet first lieutenant for Contreras and Churubusco and to captain for Chapultepec. He performed reconnaissance missions for Lt. Gen. Winfield Scott, a close friend of McClellan's father.

McClellan's experiences during the war developed various attitudes that affected his later military and political life. He learned to appreciate the value of flanking movements over frontal assaults (used by Scott at Cerro Gordo) and the value of siege operations (Vera Cruz). He witnessed Scott's success in balancing political with military affairs, and his good relations with the civil population as he invaded, enforcing strict discipline on his soldiers to minimize damage to their property. And he developed a disdain for volunteer soldiers and officers, particularly politicians who cared nothing for discipline and training.

McClellan returned to West Point to command his engineering company, which was attached to the academy for the purpose of training cadets in engineering activities. He chafed at the boredom of peacetime garrison service, although he greatly enjoyed the social life. In June 1851 he was ordered to Fort Delaware, a masonry work under construction on an island in the Delaware River, 40 miles downriver from Philadelphia. In March 1852 he was ordered to report to Capt. Randolph B. Marcy at Fort Smith, Arkansas, to serve as second-in-command on an expedition to discover the sources of the Red River. By June the expedition reached the source of the north fork of the river and Marcy named a small tributary McClellan's Creek. Upon their return to civilization on July 28, they were astonished to find that they had been given up for dead. A sensational story had reached the press, which McClellan blamed on "a set of scoundrels, who seek to keep up agitation on the frontier in order to get employment from the Govt. in one way or other," that the expedition had been ambushed by 2,000 Comanches and killed to the last man.

In the fall of 1852, McClellan published a manual on bayonet tactics that he had translated from the original French. He also received an assignment to the Department of Texas, with orders to perform a survey of Texas rivers and harbors. In 1853 he participated in the Pacific Railroad surveys, ordered by Secretary of War Jefferson Davis, to select an appropriate route for the upcoming transcontinental railroad. McClellan surveyed the northern corridor along the 47th and 49th parallels from St. Paul to the Puget Sound. During this assignment, he demonstrated a tendency for insubordination toward senior political figures. Isaac Stevens, governor of the Washington Territory, became dissatisfied with McClellan's performance in scouting passes across the Cascade Range. (McClellan selected Yakima Pass without a thorough reconnaissance and refused the governor's order to lead a party through it in winter conditions, relying on faulty intelligence about the depth of snowpack in that area. He also neglected to find three greatly superior passes in the near vicinity, which would be the ones eventually used for railroads and interstate highways.) The governor ordered McClellan to turn over his expedition logbooks, but McClellan steadfastly refused, most likely because of embarrassing personal comments that he had made throughout.

Returning to the East, McClellan began courting Ellen Mary Marcy, the daughter of his former commander. Ellen, or Nelly, refused McClellan's first proposal of marriage, one of nine that she received from a variety of suitors, including his West Point friend, A.P. Hill. Ellen accepted Hill's proposal in 1856, but her family did not approve and he withdrew.

In June 1854, McClellan was sent on a secret reconnaissance mission to Santo Domingo at the behest of Jefferson Davis. McClellan assessed local defensive capabilities for the secretary. (The information was not used until 1870, when President Ulysses S. Grant unsuccessfully attempted to annex the Dominican Republic.) Davis was beginning to treat McClellan almost as a protégé, and his next assignment was to assess the logistical readiness of various railroads in the United States, once again with an eye toward planning for the transcontinental railroad. In March 1855, McClellan was promoted to captain and assigned to the 1st U.S. Cavalry regiment.

Because of his political connections and his mastery of French, McClellan received the assignment to be an official observer of the European armies in the Crimean War in 1855. Traveling widely, and interacting with the highest military commands and royal families, McClellan observed the siege of Sevastopol. Upon his return to the United States in 1856 he requested assignment in Philadelphia to prepare his report, which contained a critical analysis of the siege and a lengthy description of the organization of the European armies. He also wrote a manual on cavalry tactics that was based on Russian cavalry regulations. A notable failure of the observers, including McClellan, was that they neglected to explain the importance of the emergence of rifled muskets in the Crimean War, and how that would require fundamental changes in tactics for the coming Civil War.

The Army adopted McClellan's cavalry manual and also his design for a saddle, the "McClellan Saddle", which he claimed to have seen used by Hussars in Prussia and Hungary. It became standard issue for as long as the U.S. horse cavalry existed and is currently used for ceremonies.

McClellan resigned his commission in 1857, and, capitalizing on his experience with railroad assessment, became chief engineer and vice president of the Illinois Central Railroad and also president of the Ohio and Mississippi Railroad in 1860. He performed well in both jobs, expanding the Illinois Central toward New Orleans and helping the Ohio and Mississippi recover from the Panic of 1857. But despite his successes and lucrative salary ($10,000 per year), he was frustrated with civilian employment and continued to study classical military strategy assiduously. During the Utah War against the Mormons, he considered rejoining the Army. He also considered service as a filibuster in support of Benito Juárez in Mexico.

Before the outbreak of Civil War, McClellan became active in politics, supporting the presidential campaign of Democrat Stephen A. Douglas in the 1860 election. He claimed to have defeated an attempt at vote fraud by Republicans by ordering the delay of a train that was carrying men to vote illegally in another county, enabling Douglas to win the county. In October 1859 McClellan was able to resume his courtship of Ellen Marcy, and they were married in Calvary Church, New York City, on May 22, 1860.

At the start of the Civil War, McClellan's knowledge of what was called "big war science" and his railroad experience implied he would excel at military logistics. This placed him in great demand as the Union mobilized. The governors of Ohio, Pennsylvania, and New York, the three largest states of the Union, actively pursued him to command their states' militia. Ohio Governor William Dennison was the most persistent, so McClellan was commissioned a major general of volunteers and took command of the Ohio militia on April 23, 1861. Unlike some of his fellow Union officers who came from abolitionist families, he was opposed to federal interference with slavery. So some of his Southern colleagues approached him informally about siding with the Confederacy, but he could not accept the concept of secession.

On May 3 McClellan re-entered federal service by being named commander of the Department of the Ohio, responsible for the states of Ohio, Indiana, Illinois, and, later, western Pennsylvania, western Virginia, and Missouri. On May 14, he was commissioned a major general in the regular army. At age 34 he now outranked everyone in the Army other than Lt. Gen. Winfield Scott, the general in chief. McClellan's rapid promotion was partly because of his acquaintance with Salmon P. Chase, Treasury Secretary and former Ohio governor and senator.

As McClellan scrambled to process the thousands of men who were volunteering for service and to set up training camps, he also set his mind toward grand strategy. He wrote a letter to Gen. Scott on April 27, four days after assuming command in Ohio, that was the first proposal for a unified strategy for the war. It contained two alternatives, both with a prominent role for himself as commander. The first called for 80,000 men to invade Virginia through the Kanawha Valley toward Richmond. The second called for those same men to drive south instead across the Ohio River into Kentucky and Tennessee. Scott dismissed both plans as being logistically infeasible. Although he complimented McClellan and expressed his "great confidence in your intelligence, zeal, science, and energy", he replied by letter that the 80,000 men would be better used on a river-based expedition to control the Mississippi River and split the Confederacy, accompanied by a strong Union blockade of Southern ports. This plan, which would have demanded considerable patience on the part of the Northern public, was derided in newspapers as the Anaconda Plan, but eventually proved to be the successful outline used to prosecute the war. (More on this shortly). Relations between the two generals became increasingly strained over the summer and fall.

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McClellan vs. Lee Part One

Robert E. Lee, functioning in Richmond as sort of commander in chief of Virginia's armed forces, had few men to spare for faraway western Virginia. He scraped together a few thousand reinforcements and sent them to Beverly under the command of Robert S. Garnett. With 4,500 men "in a most miserable condition as to arms, clothing, equipment, and discipline," Garnett fortified the passes through which ran the main roads from the Shenandoah Valley to Wheeling and Parkersburg.

By the end of June, McClellan had 20,000 men in trans-Allegheny Virginia. Five or six thousand of them guarded the B & O, which had been reopened to Washington. McClellan sent another 2,500 men under Jacob Cox to move up the Kanawha River to Charleston. With the remaining 12,000, McClellan planned to encircle and trap Garnett's little army. Leaving 4,000 men to make a feint against Laurel Mountain, McClellan took three brigades to launch the main attack at Rich Mountain 8 miles to the south. Rather than assault the Confederate trenches head on, McClellan accepted Rosecrans' plans for a flank attack by one brigade while McClellan with two others stood ready to exploit whatever sucesses Rosecrans achieved. Guided by a local unionist over a narrow mountain track, Rosecrans's Ohio and Indiana regiments rolled up the rebel flank on July 11 and killed, wounded, or captured 170 of the 1,300 Confederates at a cost of about 60 casualties to themselves. Misinterpreting the sounds of battle through the woods and laurel thickets, McClellan feared that Rosecrans was losing; he therefore failed to launch the follow-up attack, and allowed most of the rebels to escape. Jacob Cox, writing later as a historian of the campaign, pointed out that McClellan in West Virginia "showed the same characteristics which begame well known later. There was the same overestimate of the enemy, the same tendency to interpret unfavorably the sights and sounds in front, the same hesitancy to throw in his whole force when he knew that his subordinate was engaged."

Despite McClellan's timidity, Rosecrans's attack sent the Confederates into a pell-mell retreat. 500 of them were subsequently captured, while Garnett's main force of 3,000 at Laurel Mountain, with the Federals now in their rear, fled over bad roads to the north and east. Union brigades pursued and on July 13 attacked Garnett's rear guard at Corrick's Ford, where Garnett lost his life- the first Civil War general killed in action. Although most of the rebels got away, the campaign cleared northwest Virginia of organized southern forces. Northern newspapers hailed this as a stunning success. McClellan did not hesitate to take the credit. On July 16 he issued another proclamation that read well in the press, which had begun to call him "The Young Napoleon":

Soldiers of the Army of the West! You have annihilated two armies. You have taken 5 guns, 12 colors, 1,500 stand of arms, 1,000 prisoners. Soldiers! I have confidence in you, and I trust you have learned how to confide in me.

Greatly concerned, the Confederate government in Richmond decided to send Robert E. Lee himself to take overall command of the Confederate forces in western Virginia.

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