Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law

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2012 The Body of John Merryman: Abraham Lincoln and Treason in the Civil War: The rT ials of John Merryman and Abraham Lincoln and Treason in the Civil War: The rT ials of John Merryman Eric M. Freedman Maurice A. Deane School of Law at Hofstra University

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Recommended Citation Eric M. Freedman, The Body of John Merryman: Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman and Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman, 99 The ourJ nal of American History 3 (2012) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/782

This Book Review is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Book Reviews 929 that the South shared many modern, capitalist correctness of their legal and factual assertions, characteristics with the North. Southern rail- or else release the captive. Unsurprisingly, roads faced some of the same business chal- jailers frequently resist being called to account. lenges as their northern counterparts and Much of the Anglo-American history of the responded with similar rhetorical and techno- rule of law has been shaped by the resolution logical solutions. Thomas uses  and statisti- of the resulting clashes. cal analysis to demonstrate that the level of One frequently recounted episode is the cen- railroad access for the South’s free population terpiece of both books under review. As Union nearly matched that of northerners while the troops rushed to Washington, D.C., in April number of depots and junctions per capita in 1861, many Southern sympathizers violently the South exceeded that in the North. opposed their passage. The leader of a Mary- As anyone who has ever confronted an e- land cavalry unit, John Merryman, ordered the mail inbox after a week’s vacation knows, destruction of several key railroad bridges to however, digital technology can have its disad- prevent additional Northern units from passing vantages. One of the most common is an through Baltimore. It remains contested to this overwhelming amount of information. This day whether he did so as an act of hostility or, book is packed with so much information that with the concurrence of the local authorities, in Thomas sometimes loses the thread of his good faith to forestall further violence. In any fi argument while exploring material that is event, Union military of cers considered his interesting but not clearly related to what pre- actions treasonous, placed him under arrest, and fi cedes or follows it. Still, very few people are con ned him to Fort McHenry. ’ willing to renounce digital technology because Merryman s counsel sought a writ of habeas of overstuffed e-mail inboxes. Thomas’s skill- corpus from Chief Justice Roger Taney, who ful use of innovative new research tools shows ordered that the commanding general produce why—the benefits and insights such technol- Merryman in court and justify the detention. ogy can provide are substantial. Gen. George Cadwalader instead sent a letter informing a surprised Taney that President Robert G. Angevine Abraham Lincoln had authorized Cadwalader George Washington University to suspend the writ of habeas corpus, that he Washington, D.C. had done so, and that therefore neither the doi: 10.1093/jahist/jas478 prisoner nor an explanation for his detention would be forthcoming. In Ex Parte Merryman The Body of John Merryman: Abraham Lincoln (1861), Taney denounced the putative sus- and the Suspension of Habeas Corpus.By pension as unconstitutional and expressed the Brian McGinty. (Cambridge: Harvard Univer- pious hope that Lincoln, with whom he had sity Press, 2011. 253 pp. $29.95.) long been bitterly at odds, would correct the situation. Lincoln instead publicly defended Abraham Lincoln and Treason in the Civil his actions, and Merryman remained in mili- War: The Trials of John Merryman. By Jona- tary confinement. than W. White. (Baton Rouge: Louisiana State Readers whose primary interest is history University Press, 2011. xvi, 191 pp. Cloth, rather than law will find Jonathan W. White’s $49.95. Paper, $18.95.) monograph a more valuable consideration of these events than Brian McGinty’s. White, Governments jail people who are perceived as who teaches American studies at Christopher threats. More often than not the governments Newport University, has written a vivid and believe the threats to be genuine and the impressively researched account particularly note- incarcerations to be legally sound. But govern- worthy for its scrupulous reliance on primary ments are sometimes wrong. When a court sources. He even uncovers a previously unpublis- issues a writ of habeas corpus (also known as hed letter by Merryman explaining his actions. the Great Writ of Liberty), it orders jailers to White treats the events of spring 1861 as bring a prisoner into court and requires them part of two wider stories: the story of Merry- to persuade a neutral judicial officer of the man’s continuing involvement with the criminal 930 The Journal of American History December 2012 and civil legal system as a result of the burning finally fell silent, the suspension was sustained of the bridge; and the story of the fate of thou- and the Union was saved” (p. 9). His account sands of other prisoners detained by unilateral of subsequent decisions during the period executive decision, frequently in defiance of the shows a more mixed record. As history, that commands of Congress and the courts. The section is also marred by the insertion of com- first of these stories illuminates the practical dif- mentary on the Supreme Court’s cases during ficulties faced by the constituted authorities and the current war on terror without even a side- their adversaries in attempting to vindicate their long glance at the legal lessons of World War I respective claims through legal mechanisms that as taught by its First Amendment cases, of had been created long ago under completely dif- World War II as taught by its Japanese intern- ferent conditions. The second story is ment cases, or the Korean War as taught by familiar thanks to the work of Mark E. Neely Youngstown Sheet & Tube Co. v. Sawyer (1952). Jr., but developments since September 11, Both authors agree that we live in a different 2001, make it particularly timely for us to recall legal world than Lincoln did and that, even so, the sheer radicalism of Lincoln’sposition.He Lincoln was often ambivalent about pushing claimed and exercised both the power to detain the legal envelope. He most likely hoped that civilians preventatively, incarcerating them until his successors would understand his broad the end of the conflict to forestall any harm abrogation of civil liberties to secure victory as they might do, and the power to try to punish an instance of “winning ugly.” It was preferable fi them by military tribunals for an ill-de ned to defeat but not an example to emulate. range of conduct thought to be inimical to the war effort. Lincoln believed, White argues, that Eric M. Freedman he “had a war to fight and a nation to save and Hofstra University Law School he would not allow himself or his administra- Hempstead, New York tion to be hamstrung by another branch’sinter- doi: 10.1093/jahist/jas369 pretation of the suspension clause” of the Constitution (article 1, section 9, clause 2) The Peninsula Campaign and the Necessity of (p. 75). Emancipation: African Americans and the Fight Readers whose primary interest is the various for Freedom. By Glenn David Brasher. legal arguments spawned at the time by Lin- (Chapel Hill: University of North Carolina coln’s views should turn to the extended sum- Press, 2012. 288 pp. $39.95.) maries provided in the work of McGinty, a lawyer who has previously published books in Mark Grimsley argued in Hard Hand of War the field. The salient feature of his book is its (1995) that the 1862 Peninsula Campaign insistence on the degree to which legal doc- was the turning point in the creation of the trines influenced events in the outside world. Federal hard war policy. Glenn David Brasher McGinty adopts the political scientist Carl zeroes in on the campaign’s impact regarding Brent Swisher’s view that Ex Parte Merryman one part of that policy, emancipation, and, “had the impact of a military victory for the unlike Grimsley, he extensively explores it. South,” and continues: “That the victory did Brasher maintains that Confederate use of not carry the South to ultimate independence numerous slaves to build fortifications contrib- is due in large measure to the answers Lincoln uted to the failure of the Federal invasion provided to Taney’s Merryman arguments” under Gen. George McClellan, an opponent (pp. 7–8). That is a strong statement—con- of Union interference with slavery. According ventional wisdom is surely that the North to Brasher, McClellan’s inability to end the would have prevailed militarily regardless of war, exaggerated tales about Confederate use how Lincoln had responded to the ruling— of slave soldiers, the large number of slaves and one that the author’s generally unremark- fleeing to Federal forces, and the Union able narrative fails to prove. troops’ receptivity to them because of their use- McGinty compounds the difficulty of prom- fulness enabled the Radical Republicans to con- ising in argument more than he delivers in evi- vince a formerly reluctant President Abraham dence by asserting that “after the guns of war Lincoln to issue an emancipation proclamation. Copyright of Journal of American History is the property of Organisation of American Historians and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. 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