Our problems remain epistemological.

Friday, September 17, 2021

How To Get Cited

 

 

Dear Professor,

I have attached a copy of my article on Merryman. Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Military Law Review 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>. I take issue with the standard narrative on Merryman. My findings are inline with the recent treatments of the Merryman case by Bruce Ragsdale for the Federal Judicial Center, and also inline with the two full-length books on Merryman by McGinty (2011) and White (2011). Both books were published for the 150th anniversary of the case. See Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (2011); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011); Bruce A. Ragsdale, Ex parte Merryman and Debates on Civil Liberties During the Civil War (Federal Judicial History Office 2007), <https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war>.

In your book, you make several factual and procedural claims about the Merryman case.

You state that “[o]n May 26, 1861, when Taney arrived in Baltimore ... he learned that Merryman had been charged with ... treason.” May 26 was a Sunday, and the hearings took place on May 27 and 28. It was on the 27th that the Army explained its “charges,” such as they were. As for Merryman’s attorneys, they filed their petition on the 26th, when Taney was still in DC, and perhaps they indicated what the Army’s charges might be. But, again, that was in DC, not Baltimore, Maryland. So your chronology and/or locations here seem wrong.

You state that Merryman was one of the “troublemakers” in the “local mobs” that attacked federal troops on their way to defend DC. I don’t think there is any evidence of this. You state that Merryman was or had been a member of the state legislature prior to his arrest. (In fact, according to most records, he became a member of the legislature only after the war ended.) You state that Merryman was a colonel in the militia. (In fact, according to most records, he was a lieutenant.) You state that he was an “ardent secessionist.” I know of no statements from Merryman—by spoken or written word—indicating his political leanings. And, you state that Merryman was “trying to organize troops to fight for the Confederacy.” What possible source do you have for this?—other than the Army’s charges, which were never asserted in a criminal trial, much less proven, in any actual trial?

On the procedure side, you state that Merryman’s attorneys filed their petition with Taney because Judge Giles’s habeas orders had been ignored in prior habeas cases. That’s a sensible inference—but I know of no actual records bearing out that what you suggest was actually what motivated Merryman’s attorneys to bring their petition to Taney. Maybe Merryman’s attorneys thought Taney, as Chief Justice, would get their case more headlines? You wrote that Merryman sat as “circuit judge.” That’s not quite right. Taney decided Merryman under special authority granted to Article III judges by the 1789 Judiciary Act. He was not sitting as circuit judge on the Circuit Court for Maryland—albeit, his Merryman opinion and orders were put on file with the circuit court’s records. It would be more proper to say that Taney was “on circuit” (in the sense that he was away from his DC chambers) when he decided Merryman, and not that he was acting as a “circuit judge.” Finally, you state that Taney delivered his opinion when in DC. But contemporaneous accounts say he give it over orally in the courtroom in Maryland.

If you should publish a new edition or supplement to your book, or return to Merryman in another publication, please consider amending your Merryman narrative, and please consider citing my paper.

Thank you,

Seth

Seth Barrett Tillman, How To Get Cited, New Reform Club (Sept. 17, 2021, 3:56 AM), <https://reformclub.blogspot.com/2021/09/how-to-get-cited.html>;


 

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