A Lawfare Research Project

 

David L. Noll, Lawfare Research Project 25-4, ‘Civil Contempt Against a Defiant Executive,’ Lawfare (1 July 2025), <https://ssrn.com/abstract=5346771>.

 

Professor Noll wrote:

When Union troops entered the city, they arrested John Merryman, a pro-slavery Democrat who was organizing supporters of the Confederacy, and imprisoned him at Fort McHenry. The army allowed Merryman access to a lawyer. He petitioned Chief Justice Roger Taney, who maintained chambers in Baltimore as circuit justice, for a writ of habeas corpus. [page 31 (footnotes omitted)]

Union Army troops arrested Merryman some twelve days after they entered Baltimore. Merryman did not live in Baltimore—his home was in Cockeysville—some 18 miles from Baltimore. What evidence is there that Taney had chambers in Baltimore? Moreover, it is astonishing that Noll would write that Merryman was “organizing supporters of the Confederacy.” Noll puts forward no evidence in support of that bold, inflated claim. And the authority on which Noll relies (that is, a journal article by Professor Vladeck) makes no such claim. As for counter-evidence, see ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312 (Baltimore, National Biographical Publishing Company 1879) (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”). I certainly hope that Noll is not relying on the government’s indictment. An indictment is only a mere accusation; it is not evidence of guilt. That is blackletter law. 

 

Seth Barrett Tillman, ‘A Lawfare Research Project,’ New Reform Club (July 13, 2025, 6:12 AM), <https://reformclub.blogspot.com/2025/07/a-lawfare-research-project.html>;

See also: 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 43–65 (2024) (peer review), <http://ssrn.com/abstract=4157572>; 

and, 

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481–540 (2016) (peer review), <https://tinyurl.com/2p9efyek>, <http://ssrn.com/abstract=2646888>.