The Civil War Disloyalty Trial of John O’Connell

SPRING 2009 3 T raitors, spies, and southern sympathizers seemed to be lurking everywhere during the Civil War. Union authorities in Washington and throughout the North remained perpetually wary of the damage that antiwar Democrats might do to the war effort. They feared that opponents of the war might discourage enlistments, encourage desertion, offer material aid to Confederate soldiers and guerrillas, or turn the northern public against the war. Throughout the war President Lincoln struggled with how to prevent dissent at home from damaging the Union armies. In one of his most famous statements on the subject, Lincoln asked, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?” Of course, in most cases, Lincoln did not wish to shoot either. But he dealt firmly with both dissenters and deserters, believing that the Constitution sanctioned the actions he took to impede their efforts. “I think that in such a case, to silence the agitator, and save the boy,” Lincoln concluded, “is not only constitutional, but, withal, a great mercy.”1 The primary way Lincoln dealt with disloyal civilians was by declaring martial law and suspending the writ of habeas corpus. A writ of habeas corpus is an order that a prisoner can obtain from a judge after their arrest. Anyone detained without charges can petition a judge to issue the Edited by Jonathan W. White The Civil War Disloyalty Trial of John O’Connell Abraham Lincoln (1809-1865). CINCINNATI MUSEUM CENTER 4 THE CIVIL WAR DISLOYALTY TRIAL OF JOHN O’CONNELL OHIO VALLEY HISTORY writ, which orders the arresting officer to bring “the body” of the prisoner before the court so that a judge can determine whether the prisoner is lawfully detained or should be released. The Constitution declares that the writ of habeas corpus can be suspended in cases of rebellion or invasion if the public safety requires it, but it does not expressly say who may suspend it. Most legal authorities at the time assumed that Congress possessed that power because Article I of the Constitution contains the suspension clause, but the Constitution never explicitly says that only Congress can suspend it. Thus, on April 27, 1861, with Congress out of session and the rebellion gaining steam, Lincoln privately informed Gen.in -Chief Winfield Scott that he could suspend the writ, if necessary, along “the military line” between Philadelphia and Washington, D.C., the first of nine times that the Lincoln administration authorized suspension of the writ.2 Lincoln’s April 1861 suspension led to a clash with Roger B. Taney, the Chief Justice of the United States, in the case of ex parte Merryman. The military had arrested John Merryman, a civilian in Maryland, for burning bridges near Baltimore in order to prevent northern troops from reaching Washington. Imprisoned at Fort McHenry without charge, Merryman petitioned the chief justice as a federal circuit judge in Baltimore for a writ of habeas corpus. All too eager to comply, Taney issued the writ, but Lincoln ordered the military to ignore it, and the aged judge was left with no means to enforce his order. In his opinion in the case, Taney argued that Merryman’s arrest and detention were illegal because they had occurred without a warrant or any specific charges. He reprimanded the president for never declaring martial law or officially suspending the writ of habeas corpus, but he also argued that only Congress could lawfully suspend the writ and that a military tribunal could not try civilians. In short, Taney believed “that the president has exercised a power which he does not posses under the constitution.” “He certainly does not faithfully execute the laws,” Taney argued, “if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law.” Taney concluded on a sorrowful note: Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped...