“All the Laws but One:” Print Responses to Ex parte Merryman
by David Leeds | Summer 2017
Contemporaneous print publications' reactions to Supreme Court Chief Justice Roger B. Taney's decision in Ex Parte Merryman—condemning President Lincoln's unilateral suspension of the writ of habeas corpus—reveal how political leaders on both sides of the Civil War attacked the political legitimacy of either the Lincoln administration or the Union judiciary in order to explain or rationalize their political beliefs.
1. James F. Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (New York: Simon & Schuster, 2006), 186-187.
5. Simon, Lincoln and Chief Justice Taney, 194
9. Abraham Lincoln, quoted in: Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (Baton Rouge: Louisiana State University Press, 2011), 38.
11. “Chief Justice Taney and President Lincoln,” The Charleston Mercury, June 10, 1861, 1, Proquest (accessed April 25, 2017),
13. “From Washington—Startling News—the Latest Ukase from the Republican Czar—the Writ of Habeas Corpus Suspended Throughout the United States,” The Cincinnati Daily Enquirer, September 19, 1863, Proquest (accessed April 25, 2017),
15. Abraham Lincoln, quoted in: Irons, A People’s History of the Supreme Court, 181.
17. “Roger B. Taney,” New-York Daily Tribune, June 5, 1861, Proquest, (accessed April 25, 2017),
19. “Civil and Martial Law at Baltimore,” New York Times, May 30, 1861 (accessed May 2, 2017),
21. “ART.VIII.—Opinion of CHIEF JUSTICE TANEY,” The North American Review, Oct 1861, 471, Proquest (accessed April 25, 2017),
23. “Opinion of Chief Justice Taney,” The Baltimore Sun, June 4, 1861, 4..
In the early hours of May 25, 1861, a group of Union soldiers, operating under orders approved by President Abraham Lincoln, entered the home of Maryland state legislator John Merryman and seized him from his bed. From there, they transported him to Baltimore’s Fort McHenry, where he was incarcerated as a prisoner of war. Responding to a petition for a writ of habeas corpus and acting in his capacity as judge for the federal circuit court of Maryland, Supreme Court Chief Justice Roger B. Taney ordered General George Cadwalader, the commanding officer in charge of Fort McHenry, to appear in federal court along with “the body of John Merryman” on May 27. Instead, General Cadwalader’s aide-de-camp, Colonel R. M. Lee, appeared in court alone and read a statement on behalf of the General explaining that Merryman had been apprehended for “various acts of treason.” Further, the General’s statement explained that he had been “duly authorized by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety.” Lincoln had not previously announced, either to the public or to any branch of government outside the military, that, as part of his war effort, he had decided to suspend the writ in the area between Washington, DC, and Philadelphia. The language included in Colonel Lee’s message had been carefully chosen to allude to Article I, Section 9 of the Constitution, which states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Several days later, Justice Taney published a full opinion in the case of Ex parte Merryman, ruling that President Lincoln and General Cadwalader had violated the Constitution by unilaterally suspending the writ. Lincoln ignored Taney’s order and continued to authorize military arrests of civilians suspected of aiding the Confederate war effort. More than a month after Taney’s ruling, in a message to Congress, the President explained why he believed that, in the context of the war, he was within constitutional grounds to suspend the writ. A fierce national debate about the President’s wartime powers, already underway following Colonel Lee’s court appearance, was further intensified by Taney’s stern condemnation of the Lincoln administration—his opinion was widely circulated both in newspapers and as a pamphlet—and by Lincoln’s assertive dismissal of a judicial order.
The responses to Ex parte Merryman published in contemporaneous newspapers and magazines are illustrative of how different political groups deployed language to rationalize and inform their positions regarding the Civil War. Both sides of the debate were confronted with the challenge of explaining why they believed that one branch of the U.S. federal government was qualified to assess the legitimacy of Lincoln’s actions while another was not. Even though, in ruling on Merryman, Taney was acting only in his capacity as a federal judge, his simultaneous status as Supreme Court Chief Justice gave rise to an understanding of Merryman as a clash between the highest levels of the executive and judicial branches. Confederate and Confederate-sympathizing, or “copperhead,” publications’ aggressively pro-Taney response to Merryman demonstrates the way that Southern political elites sought to justify their states’ secession from the Union through a discourse of freedom from federal tyranny. On the other hand, Republican and other pro-Union publications’ expressions of disagreement with Taney’s decision exemplify how pro-Union political leaders explained their support for Lincoln’s wartime policies by discrediting the judiciary and by insisting upon the necessity of preserving the Union.
Taney’s opinion in Ex parte Merryman, published on June 1, 1861, and Lincoln’s message to Congress defending his ability to suspend habeas corpus, delivered on July 4, each laid out a constitutionally grounded legal argument regarding the proper role of the presidency. The Chief Justice’s adjudication, an extensive document that traced the history of the writ of habeas corpus from the Magna Carta through English common law and several precedent Supreme Court cases, had two major conclusions. First, because the ability to suspend habeas corpus is delineated only in Article I of the Constitution, it belongs solely to Congress, and the President can neither suspend it unilaterally nor permit branches of the military to do so without Congress’s permission. Second, the Lincoln administration’s use of military tribunals instead of trials by jury to charge civilians constituted a violation of the Fourth, Fifth, and Sixth Amendments. Taney further cautioned that if the President could order military officers to blatantly violate the civil liberties of American citizens “under any pretext or under any circumstances, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.” However, beyond vague allusions to “any pretext,” Taney’s lengthy opinion acknowledged neither the armed rebellion occurring in eleven states nor the threat of sabotage in border states by Confederate sympathizers.
In his July 4 address to a special session of Congress, President Lincoln defended his actions on the grounds of both Constitutional authority and the need to effectively prosecute the war. The Constitution, he argued, did not specify which branches of government could suspend habeas corpus. Additionally, the ongoing presence of a rebellion justified executive action for the maintenance of “public safety,” as the Constitution permits. Finally, he explained, the framers of the Constitution intended for the President to uphold the American system of government by prioritizing the protection of the Union. He rhetorically asked his Congressional audience:
To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces, lest the one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?
To Lincoln, seeking to preserve the writ of habeas corpus at the risk of failing to regain control of the rebellious states would be the greatest abdication of his responsibilities as President, as consecrated by his “official oath.” His and Taney’s respective rhetorical stances—an emphasis on preserving the Union versus one on the letter of the Constitution—would set the tone for much of the public debate over Ex parte Merryman.
Confederate publications seized upon Taney’s opinion in Merryman to criticize the Lincoln administration as a military dictatorship with no respect for the rights of citizens articulated in the Constitution. From the very beginning of Southern states’ efforts to secede from the Union, Confederate elites had articulated this notion of Lincoln’s tyrannical disregard for the Constitution as part of their rationale. The South Carolina declaration of secession, for example, cites the “frequent violations of the Constitution of the United States by the Federal Government, and its encroachments upon the reserved rights of States” as the state’s primary reason for leaving the Union. The federal government was, at this time, innocent of any real violations of the Constitution, but South Carolinian political leaders viewed President-elect Lincoln’s publicly articulated anti-slavery views as enough of a threat to their right to uphold slavery to justify secession.
Chief Justice Taney’s assessment that Lincoln’s unilateral suspension of habeas corpus violated the Constitution gave Confederate leaders their first opportunity to substantiate their accusations of authoritarianism, and they seized it on the pages of pro-secessionist publications. For example, in a June 10, 1861, editorial commentating on Ex parte Merryman, the Charleston Mercury decried Lincoln’s invocation of martial law in border states. The Mercury’s editorial board claimed that the North was now experiencing an era of “tyranny,” and that each of Lincoln’s expansions of federal power was a “usurpation” and an “encroachment upon the rights and liberties of the people guaranteed by the Constitution.” They continued, “The consequence is the Constitution of the United States is virtually abolished, and [Lincoln] rules the United States by the force of the bayonet, an armed and unscrupulous despot.” In this editorial, the Mercury describes Lincoln as despotic and power-hungry by refusing to consider the wartime context that might have informed the President’s rationale for suspending the writ. According to the editors, Lincoln’s decisions to suspend habeas corpus and to use military tribunals to try suspected traitors were products not of his effort to suppress an armed insurrection or to combat subterfuge, but rather of his own authoritarian nature. In fact, the Mercury article goes on to accuse the President of using the Northern invasion of the South as a pretense for expanding federal power to the point of military dictatorship. “To make its aggressive policy on the South efficient,” the piece declares, “it has now been found convenient and advantageous for the one man who represents the tyrannical mobocracy of the North to assume and use all the powers of government.” In this accusation, the Mercury’s editorial board is not only accusing Lincoln of being a despot in his own right, but also accusing the entire North of supporting such “tyrannical mobocracy.” Lincoln is thus not an outlier, but rather the embodiment of this Northern spirit. This dystopian image of the Union as having become a military dictatorship echoes the warning that Taney had issued in his Merryman opinion that American citizens were at risk of “no longer living under a government of laws.” Such claims that, within three months of his election to the presidency, Lincoln had capitalized on authoritarian impulses throughout the North to implement a military dictatorship were not accurate. However, the claims’ foundation upon an official opinion issued by the Union judiciary lent them a degree of credibility.
The idea of the Union’s transformation, under Lincoln, into an autocracy ruled by martial law also played a significant role in the Richmond Daily Dispatch’s coverage of Ex parte Merryman. According to the Dispatch, the North was now in a state of “military despotism.” Taney’s opinion, it claimed, was “a decision by the highest judicial authority, that the whole of Lincoln’s proceedings are in violation of the Constitution. But what cares Lincoln or Black Republicanism for the Constitution? The Constitution is dead. Liberty in the Northern States is a name.” Just as the Mercury’s coverage of Merryman omitted any consideration that the Civil War provided special circumstances that could justify the expansion of presidential power, so too did the Dispatch’s. The Virginian newspaper reporters, writing on the same day that Taney published his opinion, claimed that, based on his despotic nature alone, Lincoln could be safely expected to ignore the Chief Justice’s order. Additionally, they claimed, Lincoln’s alleged disregard for liberty and the Constitution was not unique to him, but instead characteristic of all Republicans, and that this widespread disregard for democratic principles in the North had facilitated its turn to “military despotism.” To the writers of the Dispatch, the Merryman case was less a legal argument between two branches of government than an opportunity to corroborate previous claims of federal overreach and martial rule in the North.
The characterization of the Lincoln administration as a military dictatorship eventually influenced copperhead publications in Northern states. For example, in September 1863, the Cincinnati Daily Enquirer labeled Lincoln a “czar” whose primary motivation was to solidify his own power. “The entire North has been outlawed,” the article bemoaned, “and our judicial structure, by one sweep of the presidential pen, has been demolished. We live hereafter under martial law.” This line of argument—that President Lincoln was a tyrant who would not allow the Constitution to check his ambitions for expanding federal power—was a key component of Confederate elites’ public justifications for why they could not abide his presidency and were thus justified in their support for secession. Chief Justice Taney’s opinion in Ex parte Merryman and his harsh condemnation of Lincoln’s wartime restrictions on civil liberties provided evidence and specificity for such accusations of tyranny. Confederate newspapers like The Charleston Mercury and the Richmond Daily Dispatch enthusiastically seized on the case to depict Lincoln as a military dictator who regularly ignored the Constitution.
Whereas pro-secessionist publications capitalized on Taney’s status as a respected jurist to reinforce their depiction of Lincoln as a tyrant, pro-Union publications demonstrated a belief that Taney had forfeited his credibility as an unbiased legal authority. Antislavery advocates, particularly Republicans, had been outraged by Taney’s infamous ruling in the 1857 case of Dred Scott v. Sandford, which they viewed as not only logically indefensible but also nakedly partisan. Republicans claimed that Taney, a native Marylander, had abused his position to pursue a partisan agenda friendly to the slaveholding class of the South. In his first inaugural address, President Lincoln articulated this Republican belief that the Taney Court was more interested in legislating than in objectively interpreting the law. He criticized the Court as undemocratic, declaring:
If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribune.
Lincoln’s speech reflects the total lack of faith that Republicans and antislavery advocates had in Taney as a jurist. The issue, in their minds, was not simply that the Chief Justice had no regard for the principles of the Constitution, but also that he was trying to shape the “policy of the government” in a manner antithetical to those very principles.
The New-York Daily Tribune, a Republican newspaper founded by abolitionist Horace Greeley, described Ex parte Merryman as a political action taken by Chief Justice Taney with the intended purpose of hampering the Union war effort, rather than as a legitimate judicial ruling. The day that Taney published his opinion on Merryman, the Tribune ran an editorial criticizing the decision, opening with the accusation:
We ventured to express the opinion, the other day, that Judge Taney might rather be the dupe and tool of the Rebel cabal by which he is surrounded than a willful and designing Secessionist. A friend, who knows him intimately, assures us that we are entirely too charitable. He is represented to us as the leader of the Secessionists of Maryland, as the actual hinge on which the rebellion in that State turns.
To the writers of the Tribune, Taney’s decision in any matter pertaining to the Civil War would be impossible to trust because the Chief Justice’s true loyalty lay with the secessionists’ cause. The Tribune continued to accuse Taney of being disloyal to the Union in several other articles throughout June 1861. In one editorial, for example, the editors called him a “traitor” for trying to defend John Merryman’s constitutional rights. In one report on the ongoing conflict, a Tribune writer cautioned that the secessionists were eager to see President Lincoln “submit to the arrogance and despotism of the Supreme Court.” This latter remark lends particular insight into the way that Republicans’ distaste for Taney and their resentment over Dred Scott shaped their political discourse during the Civil War era; in their view, Taney’s alleged partisanship was so intense that it had effectively compromised the Supreme Court’s ability to fairly adjudicate. An important component in Republicans’ rationale for accepting President Lincoln’s unilateral expansion of presidential power and his refusal to adhere to judicial checks on his authority was this belief that the Taney Court should be dismissed out of hand as a partisan entity.
The New York Times’ reporting on the events surrounding Ex parte Merryman also demonstrates the Republican belief that Chief Justice Taney’s partisanship, exposed by his decision in Dred Scott, should disqualify him from being taken seriously as a jurist. In fact, the Times reporter explicitly compared Taney to the military forces of the Confederacy, writing:
It is melancholy enough to see young men, impelled by the ardor of youth, the impulsiveness of inexperience, and actuated by false ideas of patriotism, plunge into rebellion; but it is a thousand times more melancholy to see an octogenarian turning back from the grave, on the verge of which he was standing, to strike one last though impotent blow at the existence of a Government he has repeatedly sworn to support. This is precisely what ROGER B. TANEY is doing now… he uses the power of his office to serve the cause of the traitors…
The writers of the Times, in their description of the events leading up to the publication of Taney’s opinion, take it as a foregone conclusion that the Chief Justice’s motives are anti-Union, and that his helming of any court constitutes a corruption of that office. Their distrust of Taney’s judiciary was so thorough that they refused to even consider the legal and Constitutional basis of his argument. The writer of this Times article also explicitly cites Taney’s Dred Scott decision as evidence of his lack of credibility, writing, “It was fitting that the author of this libel… should soil the ermine of justice by conspiring against the Government that had honored and trusted him.” Republican publications like the New-York Daily Tribune and the New York Times incorporated the conception of Taney as unforgivably sympathetic to the secessionist cause into their rationale for supporting President Lincoln’s expansion of presidential power, despite unfriendly court rulings.
The coverage of Ex parte Merryman in pro-Union print publications also shows that Lincoln’s political allies justified their support for the President’s assumption of new wartime powers by emphasizing their belief in the necessity of preserving the Union at all costs. When Republican and moderate authors endeavored to fairly consider both sides of the question at the heart of Ex parte Merryman, they generally arrived at the conclusion that the Constitution allows for the restriction of civil liberties when the survival of the nation is at stake. For example, in an article about the legality of Lincoln’s suspension of habeas corpus, the Tribune claims, “In the course of so formidable a rebellion as the Union now confronts, a suspension of the habeas corpus is a matter of course… The safety of the Republic is the supreme law, as traitors, whether of the fighting or pettifogging genus, will find to their oust.” The Tribune’s assertion that the nation’s ability to protect itself is its highest calling is comparable to the argument that Lincoln would make during his address to Congress a month later. Similarly, in its October 1861 issue, the literary journal The North American Review published a 48-page article endeavoring to historicize and assess Taney and Lincoln’s respective arguments about habeas corpus. Rather than dismissing Taney’s opinion out of hand, the Review evenhandedly considered it in light of the sources cited by the Chief Justice. However, the journal also concluded that the Constitution’s mandate that the executive branch safeguard the Republic’s survival supersedes its protections of civil liberties. Discussing the rights granted to the federal government by the Constitution, the piece states:
This right [to carry out war] carries with it, as an incident, the power and right to carry on military operations in the usual mode, and with the usual effect… by martial law; which, when it comes into existence in time of war, under the constitutional right to make war or to suppress insurrection, is necessarily the paramount constitutional right and power, from the nature of the case.
The writers for the Review were far more forgiving to Chief Justice Taney’s credibility as a legal authority than many Republican publications of the time. The staff of the Review constructed its argument on the assumption that Taney’s refusal to acknowledge the ongoing insurrection was not necessarily a product of Confederate sympathies, but potentially a product of his understanding that the Constitution’s interpretation should not change according to circumstance—an understanding with which the Review would disagree. Indeed, while the writers for the Review conceded that Lincoln’s public defense of his actions was far from unassailable, they nonetheless maintained that the secession of eleven states provided adequate grounds for the President’s invocation of martial law. This insistence on the priority of preserving the national union was a crucial component of how Republicans continued to justify Lincoln’s unilateral expansion of presidential power and his escalation of the war as the conflict went on. Republican print publications’ coverage of Ex parte Merryman demonstrates this rhetorical stance.
The coverage of Ex parte Merryman in print publications in 1861 reveals much about how different political advocates of varying allegiances used rhetoric to defend their positions on political issues pertaining to the Civil War. Confederate leaders were driven to secession mostly by their devotion to maintaining the institution of slavery. However, in public defenses of their decision to break from the Union, they framed their political actions as a matter of freedom from tyranny. The notion of the federal government interfering with the institution of slavery, the Confederates claimed, was symptomatic of the much larger issue of a federal government that had expanded beyond acceptable limits. They asserted that the goal of secession was to protect the rights of their citizens from a despotic and overreaching federal government. These rhetorical principles are pervasive in pro-secessionist publications’ coverage of Ex parte Merryman. According to such authors, Taney’s written opinion in that case was proof of their claims that the Lincoln administration was a military dictatorship that trampled liberties and spurned checks and balances. The abuses of power identified by Taney were of a pattern with the abuses of power that Southern political elites feared based on Lincoln’s anti-slavery rhetoric prior to his taking office. Secession, therefore, had been justified as the only way to escape this despotism. Meanwhile, pro-Union publications in the North came to Lincoln’s defense and announced their disagreement with Taney’s ruling. They rationalized the President’s failure to comply with judicial rulings by claiming that the treasonous Chief Justice Taney (though acting in his capacity as a circuit court judge) had corrupted the judiciary, and therefore its rulings were illegitimate. Although a legal case could be and was made to defend Lincoln’s suspension of habeas corpus, Republicans of the era demonstrated a profound lack of faith in an entire branch of the federal government. This resentment of the judiciary and the Taney Court informed Republicans’ willingness to consistently accept Lincoln’s efforts to expand his own power on the pretense of ensuring the survival of the Republic. Indeed, the promise of preserving the national Union in the face of armed rebellion also played a significant role in many Republicans’ ends-based rhetorical approach to President Lincoln’s wartime policies. Both sides of the war claimed to be the true defendants of liberty, and print publications’ responses to Ex parte Merryman demonstrate the manner in which they explained and rationalized those claims.
Merryman also represents an extreme example of how divergent political aims can fundamentally influence public faith in the court system. Even though Taney, as an individual, was privately sympathetic to the secessionist cause, he had full authority to issue his opinion in Merryman, and he supported his claims with Constitutional scholarship and legal precedent. Nonetheless, his opinion in Dred Scott and his perceived opposition to the Union war effort irreparably damaged his credibility as an impartial jurist among Lincoln’s supporters—so much so, that his unpopularity among Republicans created a partisan crisis of legitimacy for the federal court system. With Chief Justice Taney as the face of the American judiciary, pro-Union advocates openly called on the President to ignore any checks on his power delivered by the courts. Lincoln did ignore such checks, and, in the immediate aftermath, Republicans supported his suspension of habeas corpus. At the same time, however, Northern copperheads publicly cheered Taney’s decision and celebrated the Chief Justice as an exemplary jurist. The determining factor in whether a political figure or commentator recognized Taney’s attempt to rein in Lincoln’s power as legitimate was often not whether the person agreed with Taney’s legal rationale, but rather which side they supported in the ongoing Civil War. The question of whether the judiciary is authorized to participate in the system of checks and balances should not be a partisan one. However, the disparate branches of American government are comprised of individuals, and individuals are susceptible to accusations of bias. Advocates can then use such accusations to undermine jurists’ credibility and sow public doubt in the legitimacy of the judicial system. This phenomenon occurred when the Merryman decision created public distrust in the very democratic institutions that 1861 Republicans hoped the Civil War would preserve.
2. In 1861, Taney held simultaneously held the positions of federal circuit judge and Supreme Court Chief Justice.
4. United States Constitution (1787).
6. Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487).
8. Simon, Lincoln and Chief Justice Taney, 196-197.
10. South Carolina Secession Convention, “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” December 24, 1860, in The Confederate and Neo-Confederate Reader: The "Great Truth" about the "Lost Cause," ed. James W. Loewen and Edward H. Sebesta (Jackson: University of Mississippi Press, 2010), 111-117.
12. “Military Despotism,” The Daily Dispatch, June 1, 1861, Proquest (accessed April 25, 2017),
14. Peter Irons, A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution (New York: Penguin Books, 1999) 180-181.
16. “Roger B. Taney,” New-York Daily Tribune, June 1, 1861, Proquest (accessed April 25, 2017),
18. “From Maryland,” New-York Daily Tribune, June 2, 1861, Proquest (accessed April 25, 2017),
20. “Roger B. Taney,” New-York Daily Tribune, June 5, 1861.
22. Irons, A People's History of the Supreme Court, 179-189.
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