Lincoln and Liberty: Part One

Ex parte Merryman

Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
President Abraham Lincoln's presidential message, July 4, 1861

In Article I, section nine of the United States Constitution the framers implied that liberty could be disturbed: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it [italics added]." The framers back then thought that Congress would enact such a measure in wartime (hence, the clause is put in the article that deals with the legislative branch), but President Abraham Lincoln had different ideas.

His ideas would be applied to Maryland, a state, according to Lincoln biographer Ronald C. White, Jr., that was like a crab to Washington, D.C., "with claws pinching in on the capital from three sides." What made those claws dangerous was that they contained a large minority of secessionists in the legislature and in its eastern and southern half. In the days immediately following Fort Sumter, many Confederate flags were raised in Baltimore. When troops of the 6th Massachusetts Regiment marched through the city on April 19, 1861, the local populace assailed it with bricks, knives, and pistols; like the Boston Massacre nearly a century before, fired, quelling their assailants once and for all. Four New Englanders and 12 Baltimoreans fell in the clash, with many more wounded. The secessionist sympathies of much of the populace was also expressed in cut telegraph wires from Washington, D.C., destroying bridges, tearing up railroad tracks, anything that would render the nation's capital incommunicado.

Not surprisingly, rumors soon became for a time the sole means of communication, one of which was that the Virginia Militia and gun-toting pro-southern Marylanders were marching to attack them. Consequently, residents and government clerks formed militia units and buildings were fortified. Fortunately, there was good news to counter the bad: more regiments from above the Mason-Dixon lines were on their way to the rescue.

While there was no battle in front of the White House, more Yankees did indeed come. The secessionists, though, were to still worrisome. On April 27, Lincoln authorized General Winfield Scott, the elderly general in chief., "to suspend the writ of habeas corpus" if "an insurrection against the laws of the United States" broke out in the vicinity of the railroad line that started at Philadelphia, went through Baltimore, and ended in the capital. Lincoln's order was zealously executed, the prisoners being detained at none other than Fort McHenry of War of 1812 fame. Ironically, one of the men in those jail cells was a grandson of Francis Scott Key, whose song "The Star Spangled Banner" was written during and inspired by the British attempts to take the fort 49 years before.

Yet it was the arrest of a relatively unknown, wealthy landowner that would cause controvery to be raised over Lincoln's measure. John Merryman was also a lieutenant in a secessionist cavalry unit who had burned bridges and cut telegraph wires, but it was for drilling secessionist troops that he was arrested at his home in Cockeysville, Maryland on May 25. His lawyer took action, petitioning the federal court in Baltimore to impart to his client a writ of habeas corpus.

Justice Roger B. Taney, Supreme Court, U.S by Mathew Brady.

Back then, a Supreme Court Justice, who is from each of the nine circuits, held the dual role of not only making important decisions in the Supreme Court building but of being the presiding judge of the circuit court. It just so happened that Chief Justice Roger Taney presided over the court the lawyer petitioned. Taney-- an elderly, gaunt Marylander whose strict constructionist views had got him into President Andrew Jackson's "kitchen cabinet" as attorney general and secretary of the treasury, and then an appointment as the chief justice of the U.S. Supreme Court in the waning days of the Jackson Administration in 1836-- granted the request. But when Taney's writ reached Fort McHenry, the commanding refused to obey the order, citing, of course, the one given by the commander in chief.

As for Lincoln, he simply did not give Taney's order the time of day despite the chief Justice making his views quite plain in his ruling of Ex parte Merryman on May 28. Lincoln, Taney asserted, was becoming despot, sucking power from both the legislative and judicial branches. On the other ends of the political spectrum-- the left, center, or left of center in this case-- the Republican press stood behind the chief executive, as well as many scholars of the constitution, who argued that the location of the habeas corpus clause did not matter.

Nevertheless, the fact remained that the same man who as a Whig criticized the presidency of "King Andrew I" was in turn a president who exercised more executive power than even Jackson.

Sources: 

McPherson, James M. Battle Cry of Freedom: The Civil War Era. New York: Oxford University Press, 1988. Print. The Oxford History of the United States v. 6. 

White, Ronald C. A. Lincoln: a Biography. 1st ed. New York: Random House, 2009. Print.

The Siege of Kohima 1944

By your efforts you have prevented the Japanese from attaining this objective. All attempts to overrun the garrison have been frustrated by your determination and devotion to duty...
Colonel Hugh Richards, the Garrison Commander, in his order of the day for April 14, 1944.

Having taken Burma in May 1942, the Japanese conquests stretched from the Pacific islands all the way to the border of India, that jewel of the British Empire. On March 15, 1944, the Japanese 15th Army commenced Operation C, Tokyo's attempt to take the jewel for its "Greater East Asia Co-Prosperity Sphere." Yet Lieutenant General Mutaguchi Renya, the 15th Army's commander, did not intend to to go all the way down to end of the Indian Peninsula, past Mumbai. Rather, the offensive was limited. Mutaguchi intended only to take Kohima, Imphal, and Dimapur, the last of which had a vast amount of provisions; their capture, Mutaguchi hoped, would not only lessen the enemy's capability to retake Burma and make it harder to supply General "Vinegar Joe" Stilwell's forces but, once Dimapur was captured, enable him to release Subhas Chandra Bose's Indian National Army (INA), which would exploit the discontent caused by British rule by beginning an insurrection. Only then would Japan have India.

So the Japanese invaded, driving the British back. Lieutenant General William Slim, the commander of the British 14th Army, was correct in his belief that the enemy wanted Dimapur, but he failed, however, to realize the importance of Kohima- a ridge 1,500 m (5,000 ft) high that is located in the Naga Hills- and how badly the Japanese wanted it . Conversely, Mutaguchi realized that if his forces took Kohima Ridge, which guards the only road between Dimapur and Imphal, the British in Imphal could not be resupplied. Therefore, Mutaguchi instructed the 31st Division under General Sato Kotoku to seize the promontory and the town, also named Kohima.

Still, Slim planned on defending Kohima. On March 22, he sent a stop-gap garrison under a Colonel Hugh Richards there, which was to be a forward position for Dimapur. Seven days later, Sato cut the Imphal-Kohima road at Milestone 72, making it all the more urgent for the British to augment Richards. Thus, Slim reinforced Richards with the 161st Brigade- composed of the 4th Battalion, Queen's Royal West Kent's; the 1st Battalion, 1st Punjab; and the 4th Battalion, 7th Rajputs. The unit was the only one besides the Kohima garrison that stood between Sato and Dimapur before Major General John Grover's 2nd Division made it there.

Meanwhile, that very same day, Slim met with Lieutenant General Sir Montagu Stopford, the commander of the XXXIII Corps (of which the 2nd Division was a part of), who expressed his concern that if the Japanese cut off the Kohima garrison prior to Grover's arrival, undefended Dimapur would be easy pickings for them. The gamble is worth it, replied Slim; Sato will be held up trying to take Kohima, gaining sufficient time for Grover to be ready. Suffice it to say Slim, on March 30, eventually compromised: both Dimapur and Kohima would be defended.

There was just one problem: with only the Kohima garrison and the 161st Brigade in the vicinity as yet, which one should be a higher priority to defend, Kohima or Dimapur? Stopford, who had been unconvinced by Slim's argument, thought he knew, and on April 3, told that the Japanese were currently surrounding Kohima (they were not) and believing they lusted for Dimapur more, Stopford ordered Brigadier General "Daddy" Warren to withdraw his 161st Brigade. The three men responsible for the defense of Kohima- Warren, Richards, and the civilian Deputy Commissioner Charles Pawsey- were shocked and spoke out against the order. The grievances these men had made it all the way up the chain of command to General Slim himself, but he affirmed Stopford's course of action.

So the 161st Brigade departed, and what remained in Kohima were 260 men of the Assam rifles, two companies of the Nepalese Shere Regiment, and various troops on sick leave and who had the job of guarding the depots. On the night of April 3, Richards sent out a patrol. The patrol moved to southern part of the Kohima Ridge, entering Aradura Spur. There, it saw a sight that would shock Richards, since he knew that Kohima was in no shape to be held: Japanese soldiers. The patrol gave them the bayonet, driving the enemy off. Stopford's decision was pure folly.

Kohima Ridge looking south from the air.

Worse was to come. In the morning, after an 160-mile, 250-km march lasting 20 days and over formidable terrain, the Japanese of the 1st Battalion, 58th Regiment, 31st Division attacked General Purpose Transport (GPT) Ridge, a spur, a part of the eastern portion of Kohima Ridge. From the east, over hills and through valleys, came the regiment's 2nd and 3rd Battalions.The 58th had arrived mere hours after Warren's brigade had departed. Realizing his blunder, Stopford ordered the 161st back to Kohima. The morning after that, the 446 men of Colonel John Laverty's 4th Battalion, Royal West Kents arrived, but that was it. The rest of the brigade was unable to reach Richards before Sato surrounded Kohima.

For all the consternation these developments caused the British, Sato's attacks were weak and piecemeal, gaining precious time for the garrison, who exploited it by digging in, without barbed wire, that defensive luxury not being allowed in the Naga Hills. Knowing full well that no real provisions had been made to replenish his men with food, water, and ammunition, Richards hoped that they could all "muddle by."


British troops at Kohima.

Two miles (3 km) away at Jotsoma, Warren could only watch them muddling by. He placed his 1/1st Punjab and 4/7th Rajputs on Jotsoma Ridge along with some mountain artillery from Colonel Humphrey Hill's 24th Indian Mountain Regiment. From there, the guns would be able to support the Kohima garrison, support that would prove valuable in the coming struggle.

Back on the ridge, there was bad luck on April 6 for the garrison. In the morning, Japanese bombarded the men of the 1st Battalion, 3rd Gurkhas and the Burma Rifles on GPT Ridge and Jail Hill (also a part of Kohima, of course). The jungle became a seething cauldron of fire. Trees lost their green leaves from their artillery and mortar fire, branches snapped, and splinters, just as dangerous as shrapnel, spread everywhere. Captain Nagaya, the commander of 3/58th, fell in battle. To DIS Hill (again, a component of the ridge) the Indians and Burmese, previously on Jail Hill, fled while the defenders on GPT Ridge managed to repel their assailants. Sato now had Jail Hill.


This photograph shows Jail Hill in the center.

But there was good luck to counter the bad... sort of. Warren had been able to do something. Elements of his brigade, particulary a company of the 4/7th Rajputs, reached Kohima. That, however, was the only good fortune the garrison had on April 6. Later, the telephone line between Kohima and Jotsoma was cut. With the execption of the two raidos of Laverty and Major Dick Yeo- the commander of the 20th Battery, 24th Indian Mountain Regiment- Kohima was isolated. This isolation was exacerbated by the rest of Sato's forces arriving on the field; 15,000 of the enemy now encompassed the 1,000-man garrison.

In the night, under the light of the moon, the cry of Banzai! rang out, the Japanese advancing down Jail Hill toward DIS Hill like an avalanche. The flashes of the Royal West Kents' rifles, machine guns, and mortars, added to the celestial illumination, tearing the attackers to shreds as close quarters combat ensued. Despite tenacious defense on the part of the British, Good Friday, April 7, dawned with their commander- Major P.E.M. Shaw of Company C, Royal West Kents- wounded, their ammunition running out, and their positions on the slopes facing south and south-west at the mercy of uninhibited Japanese machine gun and artillery fire. Amidst all this misery, some of the Japanese managed to infiltrate the bakery and some ammunition storage huts in the center of DIS Hill. They had hoped that, with sun just beginning to show itself, they would not be detected.

They were, though. Up the hill the West Kents and Gurkhas charged, the gleam of their bayonets shining in the sunlight as they threw grenades. The buildings set aflame, the Japanese withdrew only to be killed by enemy rifles or Bren light machine guns. Captain Shiro Sato, who had succeeded Nagaya as commander of the 3/58th, fell, dead, as well as more than 60 of his fellow countrymen. Amazingly, two Japanese prisoners were captured, one of whom had been mortally wounded and would as a consequence die shortly thereafter. Since Japanese soldiers were expected to die rather than capitulate, they were not trained how to conduct themselves when interrogated by their foes. Hence, the other POW devulged all he knew about the whereabouts of his comrades.

The Japanese tried again, only at nighttime. On the morning of April 8, much to their frustration, the British discovered that the Japanese, having occupied a pillbox on the crest, were once more on DIS Hill. From there, the Japanese could reign led upon the defenders. Lance Corporal John Harman realized that dangerous potential and crawled toward the bunker, making a dash for it when very close. Through the hail of bullets he ran, until he was at the door of the pillbox, where he pulled out a grenade, took out the pin, and let the lever go. He counted for three seconds on a fuse for four, one... two... three. Then, he opened the door and threw the grenade in. Inside, a blast erupted, killing everybody. The captured enemy machine gun in his hands and his comrades cheering him, Harman went back down the slope. Twenty-nine year old John Harman would posthumously receive the Victoria Cross.

Yet Harman's gallantry could not halt the enemy. Also on April 8, the 31st Division's 138th Regiment surrounded Warren in Jotsoma. Then later in the day, Mutaguchi ordered Sato to march on Dimapur. Sato did so, sending a battalion of the 138th onward. But it just so happened Mutaguchi sent a carbon copy of his order to Rangoon, the headquarters of the Burma Area Army, whose commander, General Kawabe Masakazu, countermanded his instruction. Thus, five hours after having set off, the battalion had to turn around. Dimapur's capture could have been another Bataan, Singapore, Burma for the Japanese, another victory, but it was not to be. Besides, even if they had taken it and continued their "March on Delhi" as their propagandists called the invasion, it is highly probable they would have eventually been defeated and pushed all the way back to Burma; Slim's Eastern Army was still full of fight.

The Japanese, however, had no intention of backing off from Kohima. In the early morning light of Easter Sunday, April 9, the British on DIS Hill discovered that the Japanese were on the hill again, for the third time, and again John Harman took matters into his own hands. With the support of two Bren guns, he charged up the hill into a storm of very inaccurate and wide Japanese fire. Upon reaching their trench, Harman fired his Lee Enfield, killing four of the enemy; the fifth Japanese he bayoneted. Standing up he held the captured enemy machine gun over his temple, then threw it to the crowd. Like the last time, his comrades cheered. Harman began to walk down the hill, forgetting that the destruction of much of the jungle by artillery fire meant that he was a perfect target for the Japanese. His comrades cried out for him to make dash back to his foxhole, but it was to no avail. There was a burst of machine gun fire. Harman fell right in front of his pit. Major Donald Easten left his trench and retrieved him. His bullet-riddled body oozing with blood, Harman died in Easten's trench a few minutes later.

The tennis court.

But the siege did not end with Harman's death. The monsoon rains, which were anticipated to commence in May, began the following day, April 10. Dehydrated men in their foxholes, British and Indian alike, opened their dry mouths towards the heavens, too thirsty to worry about the sediment within the raindrops. To get more water, they, carrying droves of their buddies' canteens, did forays behind Japanese lines, where a pipe eliciting water was. Japanese snipers from trees perpetually harassed the garrison. As a Tommy remembered, "You couldn't do much about it. You didn't know where the enemy were and just kept your head down." The amount of tea given to the defenders was decreased to half a mug per man. Pawsey's tennis court became a no-man's-land, the opposing sides a mere 18m (20 yards) apart from each other. Indeed, sleep was almost impossible there, men getting minutes instead of the necessary hours of it. While the Royal West Kents defending their corner of the court had the worst of it, fatigue was very much a universial problem for the garrison. A private named Peacock of Company A took a nap in a trench. When he awoke, he discovered he was sharing his trench with an enemy officer, who obviously thought he was dead. After strangling the Japanese, Peacock, to be certain he was actually dead, stabbed him with his samurai sword. Beginning on April 13- "Black Thirteenth" to the defenders of Kohima- Dakota DC-3s, escorted by Hurribombers, airdropped supplies to garrison, but due to the small size of the drop zone, the vast majority of supplies landed within Japanese lines. Among the payloads dropped were stocks of British 3in mortar ammunition, which the Japanese, using captured mortars of that type, tormented their excepted recipients with.



Garrison or "Summerhouse" Hill.

Nevertheless, hope was on the horizon, literally. By April 17, the garrison- now reduced to defending "Summerhouse" or Garrison Hill, the northern edge of Kohima Ridge- could see the relieving advancing from the west, and, with help of Yeo's radio, the 2nd Division's guns bombarded the Japanese positions.

Hope was even closer on the 18th. Through the morning mist, the Royal West Kents could make out the turbans of the 1/1st Punjab on Piquet Hill. Later, the Punjab's Company B, accompanied by Lee Grant Tanks, reached the garrison. Kohima was surrounded no more; the siege was over.

Two days later, Kohima's tired, unshaven, dirty defenders were relieved. "Shabash, Royal West Kents!" the relieving Indian troops said to the 4th Battalion. Of the 446 men of that unit that arrived at Kohima on April 5th, only 168 did not become casualties.

The siege of Kohima was over; the battle of Kohima was about to begin.