Media Coverage and Public Debates
The drama of Chief Justice Taney confronting an Army general and the President of the United States attracted national press attention to the court proceedings in Baltimore. The case made public for the first time Lincoln’s authorization to suspend the privilege of the writ of habeas corpus in Northern states and became a focus of debates on the President’s assumption of wartime executive authority. The court proceedings in Baltimore, where federal troops had already fought with pro-Confederate mobs, heightened many northerners’ anxiety about the extent of secessionist support within the states that remained within the Union.
The initial press response fell along familiar partisan lines, as Democrats and Southern sympathizers seized upon the military arrest as evidence of Lincoln as an emerging tyrant. The Crisis of Columbus, Ohio, lamented that “men on mere suspicion of political opponents, are deprived of their liberty.” A New York paper urged a defense of the writ of habeas corpus as the most important protection against “the exercise of judicial authority by injudicious men.” The Baltimore Sun reported that “all know” the power to suspend the writ “left the liberty of the citizen at the mercy of the military officer.” According to Republican newspapers, Taney’s eagerness to confront the administration was further confirmation of the villainy of the author of the Dred Scott decision. The case was proof, according to the New York Times, that the Chief Justice “serves the rebel cause.” The Chicago Tribune added that the Chief Justice, sworn to uphold the Constitution, “takes sides with traitors who are exerting every energy to subvert it.”
To many others Taney was a hero, and his opinion in Ex parte Merryman was quickly republished in pamphlets, including one issued by a New Orleans printer. In Maryland, the military arrest of a prominent planter like Merryman galvanized the many secessionists in the state and became the stuff of popular legend. A song sheet of “John Merryman,” to the tune of “Old Dan Tucker,” celebrated the Marylander who “would not stoop to Lincoln’s pander” and linked Merryman with Jefferson Davis and other Confederate leaders. The role of federal soldiers in shooting citizens during the April riot in Baltimore was reflected in another popular pro-Southern song, “Maryland, My Maryland,” which graphically warned “The despot’s heel is on thy shore” and cheered the Marylanders who spurned the “Northern scum.” The military arrests publicized by the Merryman coverage fed the popular criticism of Lincoln as a tyrant or dictator, disregarding constitutional liberties and assuming unprecedented executive powers. In one of the earliest of his numerous anti-Lincoln and pro-Confederate prints produced during the Civil War, Adalbert Volck in 1861 pictured Lincoln insolently resting his feet atop volumes titled “Habeas Corpus,” “Law,” and “Constitution.”
Ex parte Merryman also marked the beginning of a more substantive constitutional debate on habeas corpus and the proper extent of executive and military authority in a civil war. Among the first legal commentaries on Taney’s opinion was that of Joel Parker, a Harvard law professor and long-time justice of the New Hampshire Superior Court. Relying in part on a Supreme Court decision of Taney regarding the suspension of habeas in Rhode Island during the Dorr Rebellion, Parker argued that in time of war and within the area of military operations, the courts could not demand of a military officer any civil duty that conflicted with military duty. The Constitution did not authorize any particular branch of government to suspend the writ of habeas corpus, according to Parker, but made that suspension incidental to the exercise of other powers, such as the power to put down an insurrection or to make war. Horace Binney presented a notable defense of the President’s authority to suspend the privilege of the writ of habeas corpus. As recognized in practice and in laws dating to the 1790s, it was the executive’s responsibility to identify the conditions for suspension, such as when a rebellion or invasion prevents the execution of the laws and thereby threatens public safety. Binney also contended that the authority to suspend was safest in the hands of the President, who was subject to a limited term and impeachment. Among critics of the Lincoln administration, Edward Ingersoll presented one of the most notable rebuttals of Parker and Binney. Ingersoll, the author of a leading treatise on habeas corpus published in 1849, thought all precedent supported the argument that only the legislature had authority to suspend the privilege of the writ. It was the “monstrous idea of the hour” that the military had an inherent executive power that overrides all law and the process of law.
Lincoln’s own commentary on habeas corpus in a public letter addressed to Erastus Corning and other Democratic critics in Albany, New York, was probably the most widely read, or at least widely known, publication on the topic. Lincoln wrote the letter in response to the resolutions of a public meeting that condemned the military arrest and trial of Clement Vallandigham, a former member of Congress who had publicly denounced the imposition of martial law in Ohio. Lincoln described his reluctance to restrict the civil liberties of individuals and the events that convinced him that only the executive could protect the public safety by exercising the constitutional provision for suspending the privilege of the writ when faced with “sudden and extensive uprisings against the government.” The letter was initially published in the New York Tribune, and the Loyal Publication Society distributed 500,000 copies of a pamphlet version.
Ex parte Merryman and Debates on Civil Liberties During the Civil War