On May 28, 1861, the chief justice of the United States Supreme Court issued a bold and provocative challenge to the president of the United States. Sitting in the courtroom of the U.S. Circuit Court in Baltimore, the eighty-four-year-old Roger Brooke Taney ruled that Abraham Lincoln had violated his constitutional duty to “take care that the laws be faithfully executed” by suspending the privilege of the writ of habeas corpus along the military line between Washington and Philadelphia.¹ Taney had issued a writ of habeas corpus ordering the military commander of Fort McHenry to “have the body of John Merryman”...

A crowd began forming on Monday morning along St. Paul Street in front of Baltimore’s Masonic Hall. The United States district and circuit courts had occupied rooms in the building since 1823, and Roger Brooke Taney had held court there for much of his twenty-five years as chief justice of the United States Supreme Court and U.S. circuit judge for the Fourth Circuit. The Masonic Hall was a handsome, two-story pile of bricks and stone with a columned entryway surmounted by a Roman arch and a small forecourt enclosed by an iron fence. At a few minutes before eleven, Taney...

Chief Justice Taney was aware of the unrest that prevailed in Maryland at the time of his May 28 decision, though in his oral statement in open court—and in the written opinion he was now preparing—he did not hint at it. In the five weeks preceding his ruling in the Merryman case, Baltimore and the territory surrounding it had been the scene of violence not equaled since the British sailed up Chesapeake Bay and laid siege to Fort McHenry in 1814. The successful defense of McHenry had inspired Francis Scott Key, “at dawn’s early light” on September 14,...

John Merryman was a man of some note in Maryland even before Chief Justice Taney elevated him to national fame in late May 1861. He was a substantial landowner, a gentleman farmer, a businessman, a politician, and the scion of one of the state’s oldest and most distinguished families. Colonial archives record the presence of Merrymans in Maryland as early as the middle of the seventeenth century. The family came originally from Herefordshire in England and settled, first along the James River in Virginia, and a few years later along the Patapsco River in Maryland. They began to acquire land...

Within a few hours after Merryman was brought to Fort McHenry, the doors of the fort were opened and three men who had urgent business with the prisoner were admitted. One was later identified in court papers as Merryman’s brother-in-law, though his name was not noted (Maryland’s wealthy old families were typically large and there were many brothers-and sisters-in-law).¹ The two others were lawyers with connections to Baltimore’s power establishment. George M. Gill was fifty-eight years old and noted as one of Baltimore’s most prominent courtroom advocates when he answered the call to Fort McHenry. Born in the city in...

The clerk of the circuit court in Baltimore delivered the papers in Ex parte Merryman to the White House, apparently by mail.¹ The New York Herald reported that the president then wrote a personal letter to Taney, but the letter was not made public and no copy of it has survived.² In their multivolume history of Lincoln published more than thirty years later, the president’s personal secretaries, John Nicolay and John Hay, claimed that “no attention was of course paid to the transmitted papers.”³ If this was the case, however, it must have been due to the press of other...

Congress met in special session on Thursday, July 4, 1861. It had been eighty days since the president summoned the legislators to Washington, and much had happened in that time. The nation had plunged more deeply into war, and the chief justice of the United States had issued a controversial opinion declaring that the power to suspend habeas corpus was not entrusted by the Constitution to the president—it belonged to Congress, and to Congress alone. Not surprisingly, the chief justice’s opinion was much on the minds of the senators and representatives as they gathered in the Capitol on that...

While Congress and legal scholars weighed in on the habeas corpus issue, courts continued to struggle with it. Military arrests were made before and after Taney’s Merryman opinion, before and after Congress passed legislation ratifying Lincoln’s early orders of suspension, and before and after the passage of the Habeas Corpus Act of March 3, 1863. Inevitably, the legality of the arrests came before the courts for review.

In one early case, Judge Nathan K. Hall of the U.S. District Court in New York issued a writ of habeas corpus in behalf of a Campbellite minister named Judson Benedict, who had...

Taney’s Merryman opinion may have stirred controversy in the nation. It may have prompted Congress to ratify Lincoln’s early efforts to respond to the Southern rebellion. It may have aroused legal scholars to publish learned opinions on the respective powers of Congress and the executive to suspend the Great Writ of Liberty. And it may have presented new and difficult issues for resolution by federal and state courts. One thing it did not do, however, was secure John Merryman’s release from Fort McHenry—nor, of course, could it have. For all of its virtues (and faults), Taney’s opinion did not...

Ex parte Merryman was the first great legal conflict of the Civil War. The challenge that Chief Justice Taney laid down in Baltimore in May of 1861 was stark and profound. Was the president of the United States empowered by the Constitution to meet the crisis with the exercise of his own constitutional powers? Or was he required to act in “subordination” to judicial decisions? Was the Supreme Court, as the highest judicial tribunal in the land, to be the arbiter of national efforts to put down the insurrection and resist the rebellion? Or was that awesome duty to be...