In the North, the criticism wasn't aimed at Lincoln. The criticism was aimed at Chief Justice Roger B. Taney, who wrote the circuit court decision Ex parte Merryman that caused the uproar. "Public opinion in the North was, in general, bitterly hostile toward Taney for his action," writes Charles W. Smith, Jr., in his profile of the chief justice Roger B. Taney: Jacksonian Jurist.^1

The Northern press was almost uniformly critical of Taney's decision. The newspapers that were already firmly Republican, like the New York Tribune and the New York Times, had no trouble suggesting that Taney was a traitor who was trying to use the courts to disable Lincoln from putting down the insurrection. But more revealing are the reactions from the Southern-sympathizing newspapers in the North. They, too, were critical of Taney's decision.

In New York City, the two leading Copperhead newspapers were the New York Herald and the New York World. In an editorial on May 29, 1861, the Herald mocked Merryman and his fellow conspirators as hypocritical:

"...it is evident that the secessionists claim the protection of the law when it suits them...but when it is convenient to them to violate the law and to plunder the property of the government, and to break up the Union, they repudiate the constitution and the laws of the United States. How consistent are these revolutionists!"^2

On June 9th, the Herald went after Taney himself in a pair of editorials. In the first, they gave a lengthy defense of Lincoln's suspension of habeas corpus along the same lines that other Northern newspapers did, and as the Lincoln Administration itself would eventually do, too. The Herald editorial wondered out loud about how Taney could pretend not to recognize the contradictions of the decision, that it was incompatible with reality if Lincoln had any intention of protecting Washington D.C.^3

In the second editorial, the Herald provided an explanation for what they believed led Taney to his decision:

"He is now probably in favor of the Southern confederacy, and his opinion is warped accordingly."^4

The Herald went on to say that Taney's Merryman decision appeared to be "calculated to mislead many" which may have worked "if it did not wilfully ignore every important circumstance of the case". They questioned Taney's motives for issuing it, particularly because (they alleged) it was contradicted by one of Taney's own, earlier Supreme Court decisions.^4

The New York World wasn't quite so tough, but even they weren't willing to fully defend Taney's ruling, either. As explained by historian David M. Silver:

"It was the tone of Taney's decision that offended the New York World, which felt it was 'uncalled for and in bad taste.' Taney had violated, in its opinion, the 'decorum which ought to regulate the bearing of the first judicial officer of the government toward its first executive officer.'...At this point [in the war] the World maintained that emergency expanded the powers of the federal government; however, it would change its views as the war progressed."^5

So, even they agreed that there was some justification for Lincoln's action, though the newspaper would later backtrack.

That whole bit about "bad taste" is referring to the sarcastic passages that Taney included in his written decision. One of them essentially amounts to Taney saying, "Maybe I ought to go down to the White House and read the law to Lincoln myself, so he can't ignore it like he usually does." These extraneous statements "diminished" the effect the opinion might otherwise have had, according to legal historian David L. Martin.^6

Taney's Merryman decision was mostly received in the North as a political hack job, even by media outlets that were usually more sympathetic to the Southern viewpoint. According to historian James F. Simon:

"...the Chief Justice was intent on forcing a showdown with the president. Once he had written his opinion, he did all in his power to draw attention to it. Without waiting for a response from Lincoln, he made his opinion available to the public. It was published in newspapers and journals throughout the country and, with Taney’s encouragement, printed as a pamphlet. After the opinion was published in early June, Taney accepted congratulations from far-flung admirers, including a letter from former President Pierce of New Hampshire [himself an outspoken Copperhead]."^7

So, from the Northern point of view, Taney's decision was motivated more by partisan allegiance than by the law, and Lincoln was justified in ignoring him.

And keep in mind the quotes from the Herald and the World are the nicer things the Northern press tended to say. In contrast, the New York Times wrote:

"The intention of Judge Taney...is to bring on a collision between the Judicial and the Military Departments of the Government, and if possible to throw the weight of the judiciary against the United States and in favor of the rebels. He is at heart a rebel himself, for on Saturday, when it was supposed the rebels were attacking the United States forces at Arlington, Judge Taney expressed the wish that 'the Virginians would wade to their waists in Northern blood.' The animus of this exclamation will be apparent to any one; and the fact that Judge Taney, old and infirm as he is, volunteered to go to Baltimore to issue a writ in favor of a rebel, shows the alacrity with which he serves the cause of rebellion."^8

The New York Tribune wrote in similar terms, essentially calling Taney a senile traitor who ought to be careful that he doesn't get arrested for treason.^9

In Washington, D.C., the newspaper reaction was understandably more muted,^5 seeing as area residents had divided allegiances, and the city was under threat from Confederates. The New York Herald published an on-the-ground report from Washington that characterized the public reaction there to the Merryman decision:

"Judge Taney, it is generally believed here, has unknowingly made himself the tool of the Maryland secession sympathizers, who are anxious to bring about a second collision with the federal authorities, upon the pretext of maintaining the supremacy of the constitution."^10

The rest of the North had similar reactions - mostly quite hostile, occasionally more muted, rarely an outright defense of Taney, but very little criticism of Lincoln's actions. Many newspapers throughout the North would reprint the editorials from the New York papers (especially the Tribune, the Herald, and the Times), so the sentiments expressed there were read throughout the rest of the Northern states.

The best summary of the press reaction to Lincoln and Merryman is found in the book Lincoln's Supreme Court by David M. Silver. Other, briefer summaries can be found in the book Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers by James F. Simon, and in the article "When Lincoln Suspended Habeas Corpus" by David L. Martin, published in the American Bar Association Journal.

SOURCES:

^1 Smith, Charles W., Jr. Roger B. Taney: Jacksonian Jurist. University of North Carolina Press, 1936. p.220.

^2 "The Situation of Affairs". New York Herald. May 29, 1861, p.4, col.1.

^3 "The Alleged Unconstitutional Acts of president Lincoln." New York Herald. June 9, 1861, p.4, cols.2-3.

^4 "Habeas Corpus and Chief Justice Taney — His Opinions About Rebellion in 1843 and in 1861." New York Herald. June 9, 1861, p.4, col.4.

^5 Silver, David M. Lincoln's Supreme Court. Universoty of Illinois Press, 1957. pp.31-32.

^6 Martin, David L. "When Lincoln Suspended Habeas Corpus." American Bar Association Journal, Vol. 60, No. 1 (January, 1974). pp. 99-102.

^7 Simon, James F. Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers.

^8 "Secession in Rebelllion...." New York Times. May 29, 1861. p.1, col. 1.

^9 "Gen. Cadwallader and Judge Taney." New York Tribune. May 29, 1861. p.4, col.3. "Martial Law - Habeas Corpus." New York Tribune. May 30, 1861. p.4, col.3. "From Maryland." New York Tribune. June 2, 1861. p.6, col.2.

^10 "Miscellaneous News From the Capital." New York Herald. May 30, 1861. p.1, col.3.