Tuesday, May 28, 1861
Confederate Col. Porterfield, in Grafton, western Virginia, had received truthful reports of large numbers of Union soldiers not 35 miles away. These were the 1,500 or so men under Col. Kelley, who had taken the train southeast from Wheeling to near Mannington. The Confederates had burned two bridges along the B&O Railroad line and Kelley’s men were quickly repairing them.
In the morning, a detachment from Co. A, 2nd Virginia Infantry (US) was on a patrol near Glovers Gap, eight miles west of Mannington. A secessionist named Stephen Roberts captained a small band of Rebels nearby. They were attempting to burn railroad bridges when spotted by the patrol from Co. A. They came upon Roberts and two other armed men. The commander of Co. A called upon the Rebels to halt, but instead, shots were fired.
The Union troops returned the compliments and Captain Stephen Roberts fell dead, a ball through his chest. The two other Rebels fled and were never captured.
It is unsure whether Roberts was officially a Confederate Captain. If he was, he would be the first Confederate soldier and officer killed by a Union soldier in the Civil War.1
Later this day, Porterfield learned that Kelley had reached Fairmont, not 20 miles distant. A bridge had been burned to slow up their advance, but they were quickly fixing that one as well.
Porterfield considered his options. His force was small, only 550 men. They were raw recruits, poorly trained and lacked accoutrements (especially percussion caps). The town of Grafton was indeed an important rail hub that needed to be held, but it was also almost impossible to defend. Topographically, the place was overlooked on all sides by cliffs, hills and ridges. Perhaps more importantly, Porterfield believed that a good portion of its population “would have united with our enemies upon their appearance.”
With the western Virginia Union troops advancing to defend their portion of the state, Porterfield decided to move out of Grafton. Fifteen miles south lay the small town of Philippi, situated along the Tygart Valley River, which was spanned by a wooden “double barrel” covered bridge built several years prior.
The Rebel Colonel believed that the residents of Philippi were much more favorable to the South than those of Grafton. Upon reaching the town, he discovered a well-armed cavalry company waiting to join his small band. Porterfield made his headquarters in the Capito House, a hotel near the town square, while his men camped along the Tygart near the bridge. There, he would await reinforcements and hoped to retake Grafton as soon as possible.2
Meanwhile, in Baltimore, Pro-Southern Chief Justice Taney had once again called Union General Cadwalader. The previous day, Cadwalader was to deliver John Merryman to Taney’s court. Merryman, who was held in Fort McHenry, had not been charged for a crime (which was allowed under Lincoln’s suspension of the writ of habeas corpus). Failing to make an appearance with Merryman, Taney ordered Cadwalader’s arrest.
The marshal called up to deliver Cadwalader had returned empty handed. Earlier this morning, the marshal stood before the main gate at Fort McHenry and gave his name. A guard stationed at the gate wrote it down, disappeared and then returned some time later with the explanation that there was no answer to his card. Since he was not permitted to enter the outer gate, he had no choice but to leave.
Taney was now even less amused than before. As a Chief Justice of the Supreme Court of the United States, the honorable Judge Taney declared that the detention of John Merryman was criminal on two counts. First, the President “cannot suspend the privilege of the writ of ‘habeas corpus, nor authorize any military officer to do so.” Secondly, “a military officer has no right to arrest and detain” a nonmilitary citizen “for an offense against the laws of the United States,” except at the order of a court. Even then, “it is the duty of the officer to deliver him over immediately to civil authority, to be dealt with according to law.”
Unable to secure Cadwalader, Taney reminded the marshal that normally it would be his duty to “summon out the posse comitatus.” Taney also knew it was futile since “a force notoriously superior to the posse” would contest it. However, if Cadwalader had appeared before the Chief Justice, “I should impose on him the punishment which it is within my province to inflict, that of fine and imprisonment.”
Taney vowed to “reduce to writing the reasons under which I have acted, and which have led me to the conclusions expressed in my opinion, and shall report them with these proceedings to the President, and call upon him to perform his Constitutional duty—to enforce the laws, by compelling obedience to the civil process.”
It would take several days for him to finish his final draft.3
- This story seems to be true. It was reported in the May 30th edition of the Wheeling Intelligencer shortly after. I found the account in an article by Lawrence Sullivan, here. Another telling of it appears in Loyal West Virginia from 1861 to 1865 by Theodore F. Lang, though he gets the date and the name wrong. [↩]
- Official Records, Series 1, Vol. 2, p51-52. With a bit of help from the Historical Society of Philippi. [↩]
- American State Trials: Volume 9 edited by John Davison Lawson, Thomas Law Books, 1918. This book contains the transcriptions of the hearings. [↩]