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  • Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman by Jonathan W. White
  • Marcus McArthur (bio)
Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. By Jonathan W. White. (Baton Rouge: Louisiana State University Press, 2011. Pp. 191. Cloth, $49.95; paper, $18.95.)

Since the publication of Mark E. Neely’s The Fate of Liberty (1991), Civil War scholarship has experienced a surge in studies examining issues related to civil liberties and civilian loyalty during the war. While some historians before Neely had taken up these issues—notably James G. Randall, Frank L. Klement, and Harold M. Hyman—Neely provided a model for a modern treatment of the subject. As Neely observed, however, his Fate of Liberty merely scratches the surface of this story. The works of other historians and legal scholars have followed his lead, including Frank J. Williams’s Judging Lincoln (2002), Daniel Farber’s Lincoln’s Constitution (2003), James McPherson’s Tried by War (2008), and Brian McGinty’s The Body of John Merryman (2011).

Jonathan W. White has provided a helpful contribution to this growing body of literature in Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. Perhaps no case was as important to the issue of civil liberties during the Civil War as Ex parte Merryman (1861). On May 25, 1861, federal authorities arrested a Baltimore farmer named John Merryman on charges of treason against the United States. The charges stemmed from Merryman’s role as an officer of a Maryland state militia unit that burned railroad bridges near Baltimore after a prosecession mob attacked Union soldiers marching through the city on April 19. Merryman petitioned Chief Justice Roger B. Taney from prison at Fort McHenry requesting a writ of habeas corpus. The imprisoned farmer and his lawyers hoped that he would either be tried in a civil court or be set free. Taney, who was unabashedly critical of President Abraham Lincoln’s administration, issued the writ on May 26. However, Lincoln chose to ignore Taney’s writ, leaving Merryman in prison awaiting the outcome of the power struggle between the chief justice and president.

Taney responded to Lincoln’s refusal to abide by the writ by issuing the opinion Ex parte Merryman on June 1, 1861. In the opinion, Taney “blasted Lincoln’s handling of the matter” as unconstitutional on the grounds that Congress, not the president, holds the authority to suspend habeas corpus (2). The basis for Taney’s interpretation of the Constitution was that [End Page 589] the suspension clause resides in Article I, which covers the jurisdiction of Congress. Lincoln responded to Ex parte Merryman the same way he responded to Taney’s writ—he simply ignored it. As White observes, Lincoln provided a defense of his actions in his July 4, 1861, address to Congress. Lincoln suggested that he would have forsaken his presidential oath had he allowed the government to dissolve in order to avoid violating a single law. He also knew that Taney’s interpretation of the Constitution would not allow him to pursue his policy of preventative arrests where no evidence of treason existed. The president essentially cast himself as the constitutional interpreter in chief, “independent of what Taney or any other member of the judiciary had to say” (38).

The value of White’s contribution lies in the scope of his research. He points out that previous treatments of the case have relied almost exclusively on published documents, particularly the reports found in Federal Cases and the Official Records. White goes far beyond a retelling of a familiar story by meticulously examining the original manuscript court records, as well as numerous unpublished letters, newspapers, personal papers, and pamphlets. These sources shed new light on Merryman’s background, his case, and its lasting ramifications for the remainder of the war and Reconstruction. Merryman’s background provides additional context for his case, including an ironic incident that occurred just one month before his own celebrated arrest in which he arrested and detained a Maryland civilian for allegedly making disloyal statements against the South. White also reproduces a previously undiscovered letter that Merryman...


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