Congressman Henry Winter Davis (1817-1865) 8/16/04

Unconditional Unionist in Civil War Era

Critic of Arrest, Detention and Trial of Civilians by Military

By Richard E. Israel

During the recent term of the US Supreme Court, the Court considered a case, Rumsfeld

v. Padilla, No. 03-1027, [US Law Week, Supreme Court Opinions, Vol. 72, No. 49, pp. 4584-

4595] in which a US citizen was taken into custody on US soil and detained by the military

under a Presidential order as an "enemy combatant" of al Qaeda. Concluding that the case had

been brought against the wrong defendant in the wrong district court, the Court dismissed the

case without reaching the contention that the detention of such a civilian by the military violated

the US Constitution. As the case has been re- filed, it is timely to recall that the arrest,

detention and trial of civilians by the military has occurred in the past, especially in the Border

States such as Maryland during the Civil War Era. In that Era two native Marylanders with

Annapolis connections had significant roles in attempting to limit this practice.

On March 2d, 1865, little more than a month before the end of the Civil War,

the U.S. House of Representatives adopted an amendment to a miscellaneous

appropriation bill to limit the practice of trying civilians in military courts. As adopted

by the House, the amendment provided, as follows:

No person shall be tried by court-martial or military commission in any

State or Territory where the courts of the United States are open, except

persons actually mustered, or commissioned, or appointed in the military

or naval service of the United States, or rebel emissaries charged with

being spies. [The Congressional Globe, March 4th, 1865, p. 1332]

As hundreds of Marylanders, whose loyalty to the Union was suspect, had been

arrested, detained and, in some instances, tried by military authorities since the beginning of the

Civil War, [Mark E. Neely, Jr., The Fate of Liberty - Abraham Lincoln and Civil Liberties, pp.

75 and 168-169 (hereinafter cited as Neely) and Robert J. Brugger, Maryland - A Middle

Temperament 1634-1980, pp. 281-283 (hereinafter cited as Brugger )] it is not surprising that the

amendment was offered by a member of Congress from Maryland. The legislator was not,

however, a Confederate sympathizer. Rather, he was an Unconditional Unionist by the name

of Henry Winter Davis.

Representative Davis was born in Annapolis on August 16, 1817. His Mother was Jane

Winter, who had married the Rev. Henry Lyon Davis, the Rector of St. Anne's Episcopal

Church from 1816 to 1826. During part of his ministry in Annapolis, he served as president and

faculty member of St. John's College. Also living with the Davis family at the rectory on

Hanover Street was the Rev. Mr. Davis' nephew, David Davis, who was to become a Justice of

the U.S. Supreme Court. [Gerald S. Henig, Henry Winter Davis, pp. 15-18 (hereinafter cited as

Henig)]

Initially , Henry Winter Davis attended St. John's College. However, he graduated

from Kenyon College in Gambier, Ohio. Following the study of law at the University of

Virginia, he practiced law in Alexandria, Va. [Henig, pp. 25, 29 and 33] Subsequently, he moved

to Baltimore where he established a flourishing practice [Henig, pp. 43 and 48] and was elected

to three consecutive terms in Congress (1855-1861) as a candidate of the nativist American

Party (commonly called the Know Nothing Party). [Biog. Directory of US Congress, p. 878]

Upon his Father's death, he had inherited several slaves. However, he eventually freed them and

became an opponent of slavery and an advocate of emancipation [Henig, pp. 29 and 185].

In 1860 he cast one of the deciding vote for William Pennington, a New Jersey

Republican, for Speaker of the U.S. House of Representatives. [Henig, pp. 123-125] When news

of this vote reached Annapolis where the General Assembly was in session, the House of

Delegates passed a resolution condemning Representative Davis' vote for a "Black Republican."

Only one dissenting vote was recorded. Md. House Journal for 1860 at 353-355.

At the same session at which Rep. Davis was censured, the General Assembly

enacted legislation which disqualified "Black Republicans" from being officers of the

Baltimore City Police Department, which became (and remains) a State agency. Ch. 7,

Laws of Maryland, 1860. In a case concerning this law, the Court of Appeals claimed that

"officially" it did not know who the term referred to. Baltimore v. State, 15 Md. 376, 468

(1860).

Although defeated for re-election in 1860, he was again elected to Congress in 1862.

[Henig, pp. 160 and 186]In his fourth and last term (1863-1865) his stature was recognized in his

appointment as chairman of the Committee on Foreign Affairs and chairman of the Committee

on the Rebellious States.. [Henig, pp 192 and 265] Although by now he was an Unconditional

Unionist, he was a critic of what he considered President Lincoln's lenient Reconstruction plans.

Accordingly, he was the Davis of the Wade-Davis Bill which sought to establish a more stringent

Reconstruction policy. [Henig, p. 205]. However, the President "pocket vetoed" the bill. [Henig,

pp. 211-212]. Mr. Davis then joined with Senator Wade to issue the Wade-Davis

Manifesto.[Henig, pp. 215-216]

From the beginning of the Civil War, Mr. Davis was also a critic of the Lincoln

Administration's policy of military authorities arresting, detaining and even trying citizens

whose loyalty to the Union was suspect. In Maryland more than 2,000 such civilians

were detained during the war. Moreover, almost 200 were tried by military courts.

[Letter of August 12th, 2004 from Scott S. Sheads, Ranger/Historian, Fort McHenry,

Baltimore, Md.; Neely, pp. 75, 134 and 168-169]Among those who were arrested and detained

were Thomas G. Pratt, a former Governor and former U.S. Senator who had lived for some years

in Ogle Hall (now the Alumni House of the Naval Academy), 26 members of the General

Assembly, Mayor Brown of Baltimore and several newspaper editors. [Brugger, pp. 280-281]

In Maryland, Fort McHenry became the principal place of incarceration for such

civilians. Nearly fifty years before, Francis Scott Key, a St. John's College graduate who studied

law in his uncle's law office in Annapolis, had been detained on a British warship during the

British bombardment of the Fort during the War of 1812.. Inspired by the sight of the American

flag flying over the Fort, Key wrote the Star Spangled Banner with its stirring reference to the

"land of the free." Ironically, among the civilians imprisoned at the Fort during the Civil War

was Francis Scott Key's grandson, Frank Key Howard, a newspaper editor.[Brugger, p. 281]

Another relative of Francis Scott Key who was involved in the controversy over the

arrest and imprisonment of civilians was a brother-in-law, Roger Brooke Taney, who was

Chief Justice of the US Supreme Court. Sitting as a Federal Circuit judge in Baltimore in 1861,

the 84 year old Calvert County native ruled in the case of Ex Parte Merryman that the

suspension of the Writ of Habeas Corpus by President Lincoln violated the Constitution which

had in practice and prior judicial decisions been understood to require congressional approval

for such a suspension. [Ex Parte Merryman, 17 Fed. Cases 144, 147 and 152 (C.C.D.Md. 1861);

and Brugger, p. 281].

As in the War of 1812, there was also a literary response. James Ryder Randall, a

Marylander living in New Orleans, reacted to news of military control in Maryland by writing

the poem Maryland, My Maryland with its memorable first line: The despot's heel is on thy

shore! Maryland! (Sung to the tune of O Tannenbaum, this poem became the state song in 1939)

It was, however, Henry Winter Davis, an undoubted supporter of the Union, who

became one of the leading critics of trying civilians in military courts. In a major address in

Brooklyn, NY in November, 1861 he rejected the contention that the very survival of the

government justified the arrest, detention and trial of civilians by the military. There was, he

argued, ample power under the Constitution to suppress the rebellion. Moreover, the liberties

of the people were grounded in the Constitution, which expressly guaranteed civilians the right

of trial by jury in all criminal prosecutions. To the extent the government acted without regard to

the law, the exercise of such arbitrary power was a greater threat than the rebellion itself.

[Speeches and Addresses of Henry Winter Davis, pp. 268-270 and 290-291]

In the debate in early March, 1865 over his proposed amendment to the miscellaneous

appropriation bill, the opponents included Rep. Thaddeus Stevens of Pennsylvania, Chairman of

the Ways and Means Committee and a Davis ally in the Wade-Davis fight. [Congressional

Globe, Mar. 3rd, 1865, 1326] The opponents essentially argued that the military necessity of

keeping Maryland in the Union and preventing the Federal capital from being isolated in hostile

territory justified the measures which had been taken, including the trial of civilians by

military tribunals. [Congressional Globe, Mar. 3rd, 1865, p. 1328] Referring to such tribunals,

Mr. Davis emphatically argued that "The Constitution forbids them to try any citizen for any

offense." [Congressional Globe, Mar. 3rd, 1865, p. 1328]

As the Senate refused to concur in the Davis Amendment, the bill failed to pass in

the closing hours of the congressional session. [Henig, p. 237] Although the Civil War ended just

over a month later, this did not end the trial of civilians by military courts. In May, 1865,

Benjamin G. Harris, who represented Southern Maryland in the U.S. House, was convicted by a

military court of harboring two paroled Confederate soldiers. His three year sentence was

commuted by President Andrew Johnson. [Biog. Directory of Congress, 1774-1989, p. 1137] The

surviving conspirators in the Lincoln assassination, including Mary Surratt, whose home was in

what is now Clinton, were also tried and convicted by a military court. They were executed in

July, 1865.

On December 30th, 1865, former Rep. Davis died at his home in Baltimore after a brief

illness. However, at the end of the following year, Mr. Davis' cousin, David Davis, who had

settled in Illinois and been appointed by President Lincoln to the Supreme Court, wrote the

opinion for the Court in the case of Ex Parte Milligan which substantially limited the

circumstances in which civilians may be tried by military courts. In the course of his opinion,

Justice Davis said: "The Constitution of the United States is a law for the rulers and people,

equally in war and in peace, and covers with the shield of its protection all classes of men, at all

time and under all circumstances." Ex Parte Milligan, 31 U.S. 2, 120-121 (1866).