Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman

INTRODUCTION

1 Introduction John Merryman, a Baltimore County farmer, was arrested by Union military authorities at 2:00 a.m. on May 25, 1861, on vague and imprecise charges of treason against the United States. Merryman was suspected of being a pro-secession militia officer who had burned railroad bridges around Baltimore about a month before his arrest. On April 19, 1861, the streets of Baltimore had been awash in blood as an angry mob attacked soldiers from Massachusetts and Pennsylvania that were passing through the city on their way to Washington, D.C. Four soldiers and twelve civilians fell dead amid the chaos; dozens more were wounded. Following the riot, state authorities ordered members of the Baltimore police and the Maryland militia to destroy railroad bridges around Baltimore to prevent more northern troops from passing through the city. Leading a local band of cavalrymen, John Merryman burned several strategic bridges. This act, which prevented northern recruits from reaching the endangered national capital, was treason. While imprisoned at Fort McHenry, in Baltimore harbor, Merryman petitioned Chief Justice Roger B. Taney for a writ of habeas corpus. This court order would require the arresting officer to bring “the body” of the prisoner before Chief Justice Taney so that Merryman could either be charged with a crime and lawfully recommitted to prison or be set free. Merryman and his lawyers believed the writ would either secure his freedom or have him turned over to civil authorities to be tried according to Article III of the Constitution and the provisions of the Bill of Rights that secure procedural safeguards to accused criminals. On May 26, Taney issued the writ, but President Abraham Lincoln ignored it. As a consequence , the military continued to hold Merryman in close confinement at Fort McHenry. 2 | Abraham Lincoln and Treason in the Civil War On June 1, 1861, Chief Justice Taney delivered a written opinion in Ex parte Merryman that blasted Lincoln’s handling of the matter. The arrest of a little-known farmer from Baltimore County thus led to a clash of enormous proportions between the chief justice and the president. This “collision,” as it was called at the time, has been the subject of numerous essays, books, and articles regarding the nature of executive power in wartime , the definition of treason, and the rights of accused criminals to due process of law. Yet these accounts are based on a woefully incomplete understanding of what was transpiring in the 1860s as judges, lawyers, politicians , traitors, and ordinary civilians battled over the meaning of treason, the rights of the accused, and the power of the government to protect itself in times of national emergency. Historians love to tell the Merryman story. Great literature rarely provides better drama—the nation had been sundered, an ordinary man sat wallowing in a dungeon,1 soldiers were hastening to battle, vicious mobs roamed city streets, storm clouds were ominous, and the president and chief justice stood locked in an epic constitutional struggle that might determine the fate of the young republic. Yet the account, as it is often told, leaves more questions than answers. One remarkable fact is that historians who write about Ex parte Merryman have very little idea as to who John Merryman was or what he did to merit arrest. While we know that Merryman was a man of southern sympathies, we have yet to learn what actually motivated him to act illegally in April 1861. Moreover, what exactly was Chief Justice Taney doing in Baltimore? What effects did Ex parte Merryman have on military policy? And finally, what became of the main actors in this drama after Merryman was released from Fort McHenry in July 1861? The answers to these questions reveal a great deal about the treason, civil liberties, and habeas corpus issues that arose during the Civil War. These questions, however, have been too often overlooked or cursorily dealt with because historians and political scientists who write about Ex parte Merryman have relied almost entirely on the published reports of the case in Federal Cases and the Official Records rather than on the original manuscript court records. 8 Introduction | 3 In a recent volume commemorating the two hundredth anniversary of Abraham Lincoln’s birth, historian Mark E. Neely, Jr., selected Taney’s opinion in Ex parte Merryman as one of “three documents . . . critical to understanding President Abraham Lincoln’s record on civil liberties.” Neely went...