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

Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. By Jonathan W. White. (Baton Rouge, LA: Louisiana State University Press, 2011. Pp. ix, 191. $18.95.)

The author of this book uses the story of John Merryman, a Marylander accused of disloyalty to the Union in 1861, to focus on the larger issues of presidential power during wartime, treason, and due process for the accused. Merryman was a pro-secession militia officer who burned railroad bridges near Baltimore in April of 1861 to prevent Northern troops from entering his state. He was acting under orders of the then-state authorities, who wished to prevent further clashes between Maryland's pro-Southern majority and Northern militia units heading to Washington. Following President Lincoln's military takeover of Maryland and Merryman's arrest in May, Chief Justice Roger B. Taney issued a writ of habeas corpus for his release, but it was ignored by the president. Taney's response was Ex Parte Merryman, an opinion "that blasted Lincoln's handling of the matter" and became one of the most significant court rulings of the Civil War era. Jonathan W. White maintains that many previous accounts of the episode are based on a "woefully incomplete understanding" of the 1860s and that the true importance of it has been missed (2).

The author feels earlier histories failed because they relied too heavily on published reports in "Federal Cases and the Official Records rather than on the original manuscript court records" (2). In addition to court records for the District of Maryland, he employs a wide range of primary sources, including the papers of the major players, newspapers, pamphlets, and government documents. The work begins with a background of Lincoln's habeas corpus policy in Maryland, a state found to be "teeming with disloyalty" (50). White makes a strong argument that Maryland was pro-Confederate and would have seceded had not Northern arrests and "military presence ... generally ensured that state authorities remained loyal to the federal cause during the war" (108). He details Merryman's arrest and release on bond in July of 1861 but goes beyond most accounts to cover later failed attempts to prosecute Merryman and others. He shows that judges like Taney and Democrats in the North refused to help convict those accused of treason (14,000 were arrested in Northern controlled areas and over 4,000 were tried in military courts) and agreed to hear cases against Union officers for wrongful arrest and detainment (83).

White finds the Habeas Corpus Act of 1863--which made suspending the writ legal, military tribunals in the North illegal, and offered protection to Union officials--to be "a dismal failure" (6). The law failed because it sanctioned arrests of only those committing defined crimes, because Lincoln sought to intimidate the pro-Southern element by confining those who "might be plotting," and because state courts continued to hear damage suits against officers (74). Lincoln believed suspension of the writ included interruption of procedural safeguards in the Bill of Rights and that in wartime he was the "final arbiter of the Constitution"; when Congress did not agree, he just ignored that law as well (38). White contends that Lincoln's arguments in his defense were "at best, disingenuous" and maintains that he only signed the act to protect federal officials (83). Lincoln ultimately found it easier to arrest and hold without trial those in opposition and pardon them later in return for lifting their damage suits. In 1866, Lincoln's policy suffered "strong rebukes" in Ex Parte Milligan, a Supreme Court decision that found military trial of civilians where civil courts are open to be unconstitutional (87). White concludes that the principles in the case are relevant today concerning "civil liberties in wartime" and the "unchecked expansion of executive power" (117).

Bart Talbert

Salisbury University
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Author:Talbert, Bart
Publication:The Historian
Article Type:Book review
Date:Mar 22, 2013
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