Part I, The Nerdiest Debate

Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 Temple L. Rev. 391, 392 n.2 (2007) (characterizing the question posed in the instant Article (and elsewhere) as a “seemingly pedantic historical footnote”); Steve Vladeck, SCOTUS Trivia: Circuit Justice or Chief Justice, In Chambers?, One First (Feb. 20, 2023) (“Speaking of the Supreme Court and the Civil War, in the battle for nerdiest debate among [f]ederal [c]ourts scholars, the dispute over the specific capacity in which Chief Justice Taney decided Ex parte Merryman has to be up there.”), https://tinyurl.com/59rx6mhz. Vladeck repeats all too many of the usual historical myths: e.g., “Merryman was a former Maryland legislator [?] and Confederate sympathizer [?] accused [?] of being part of an organized plot to prevent Union troops from being sent through Baltimore to reinforce Washington in late April 1861 [?]” and “[w]hen Merryman was arrested by federal troops and sent to Fort McHenry for detention, his father [?] (who just happened to have been Taney’s college roommate [? and !]) promptly asked the Chief Justice, no friend of Lincoln’s, for a writ of habeas corpus.” Id. But see Merryman, 17 F. Cas. at 146 (reporting Cadwalader’s written return, i.e., his response, to Taney’s habeas writ as stating that Merryman was “charged with various acts of treason” absent any specific mention of events during April 1861 or events in Baltimore); ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312, 313 (Baltimore, National Biographical Publishing Company 1879) (noting that Merryman was a member of the Maryland legislature in 1874—absent any indication of prior membership), https://tinyurl.com/mtf43mbk; id. at 312 (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food”); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman passim (2011) (reporting Merryman’s post-American Civil War service in the state legislature, and not reporting any 1861 or pre-1861 service); ‘John Merryman’ in Francis B. Culver, Merryman Family, 10(3) Md. Hist. Mag. 286, 296–297 (Sept. 1915) (noting that Merryman was a member of the state legislature in 1874—absent any indication of prior membership), https://tinyurl.com/4es42enp; Vladeck, The Field Theory, supra, at 408 (noting that Merryman “was elected to the Maryland House of Delegates in 1874” (emphasis added)); but see also Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus 59–60 (2011) (describing Merryman’s failed 1855 campaign for a state legislative seat). But see generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 485 n.11, 486 n.12, 487–88 (2016) (contesting Ex parte Merryman’s many myths—including several of those raised by Vladeck and others). For what it is worth, Merryman was elected to the Maryland lower house in 1873, for a term which, apparently, began in 1874. See General Assembly of Maryland, The Maryland Union, Nov. 13, 1873, at 2 (reporting Merryman’s election to the House of Delegates as a Democratic-Conservative for Baltimore County); General Assembly of Maryland, Montgomery County Sentinel, Nov. 14, 1873, at 3 (same). Finally, Vladeck’s claim that Merryman’s father and Chief Justice Taney were “college roommate[s]” is novel. I suppose Vladeck’s claim is built on Paulsen’s claim and Yoo’s claim that Merryman’s father and Taney attended Dickinson’s College “together”. Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 90 n.27 (1993) (citing Swisher, infra); John Yoo, Lincoln and Habeas: of Merryman and Milligan and McCardle, 12 Chap. L. Rev. 505, 513 & n.81 (2009) (citing Swisher, infra). Both Paulsen and Yoo relied on Swisher. But Swisher does not report that the two attended “together;” rather, Swisher only reports that the two “attended Dickinson College during the same period.” 5 Carl B. Swisher, The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States: The Taney Period 1836–64, at 845 (1974) (emphasis added). And Swisher’s modest historical claim’s basis, documentary or otherwise, remains obscure. Indeed, modern research suggests that Swisher was in error. See White, supra, at 130 n.1 (explaining that “Dickinson College has no record of Merryman’s father, Nicholas Rogers Merryman, attending”). See generally D.M. Lucas & J.G. Wigmore, The Broken Telephone Effect, 22(2) Canadian Soc’y of Forensic Sci. J. 225 (1989), <https://tinyurl.com/2rh6vezt>.

The above footnote is from: Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies (forth. circa Mar. 2024) (manuscript at 10 n.23) (peer review), <http://ssrn.com/abstract=4157572>. 

Seth Barrett Tillman, Part I, The Nerdiest Debate, New Reform Club (Mar. 3, 2023, 2:22 AM), <https://reformclub.blogspot.com/2023/03/the-nediest-debate.html>; 

See also Seth Barrett Tillman, Part II, The Nerdiest Debate, New Reform Club (Mar. 8, 2023, 11:54 AM), <https://reformclub.blogspot.com/2023/03/part-ii-nerdiest-debate.html>;