In the reference I cited for Hartnett, Hartnett noted that the compilation of cases in Federal Cases that listed Merryman as a District Court case was not published until 1894. An error by the compiler.
Posted on 11/13/2007 1:06:08 PM PST by SmithL
Charleston, S.C. (AP) -- Fred Thompson has gotten a lot of mileage out of his movie and TV fame as he runs for the Republican presidential nomination. And on Tuesday, speaking at The Citadel military college, he made sure to mention one of his recent roles: president of the United States, in the movie "Bury My Heart at Wounded Knee."
But that wasn't all good for someone campaigning in the South.
"Some people say I've got a little making up to do," he said. "The last role I played when I was in the movies — I played Ulysses S. Grant." That's the Northern Civil War general who went on to become president. But it could have been worse.
(Excerpt) Read more at sfgate.com ...
[ns]: And just when did he say this?
Taney said this to the crowd in the courthouse on May 28, 1861, upon taking his seat at the bench. I provided the reference for this above. I'll repost it and highlight it in blue this time in case you can't see red font. From the Baltimore Sun, May 29, 1861:
Chief Justice Taney, upon taking his seat on the bench, said that he desired to state that his associate, Judge Giles, of the Circuit Court, was present with him yesterday by his invitation, because he desired to avail himself of his counsel and advice in so important a case. The writ of habeas corpus was ordered by him as Chief Justice of the Supreme Court of the United States, consequently Judge Giles could not act with him in the case.
[rb]: I think because he didn't want to give any excuse to the Lincoln Administration not to deliver the prisoner who was being held in Baltimore.
[ns]: You think.
Read the decision, non-seq. Here's Chief Justice Taney in the decision:
The petition was presented to me, at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, in the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw General Cadwalader, who had him in charge, from the limits of his military command.
Well here are three links, one, two, three, to three sources calling it a circuit court case. There are books like "Lincoln and Chief Justice Taney" by James F. Simon that say it was a circuit court case. Here is a site, link, that makes it clear it was a circuit court case. The only people who seem to think otherwise are you and 4CJ.
There seem to be a few others ...
From Lincoln's Constitution, p. 17, by Daniel Farber:
Technically he did not issue it in his capacity as a judge 'on circuit' but rather as an 'in chambers' opinion of the chief justice.
From Carl Brent Swisher, Roger B. Taney, The MacMillan Company, published October 1935, reprint June 1936, pp. 551.
An audience of some two thousand people assembled on the fol¬lowing day to witness the outcome of the struggle between the Chief Justice and the military authorities. Leaving the Campbell home in the company of his grandson, Taney remarked that he might be imprisoned in Fort McHenry before night, but he was going to court to do his duty. As he took his place he announced that he acted alone rather than with Judge Giles because of the fact that he was sitting not as a member of the circuit court, but as Chief Justice of the United States. One reason for the distinction, undoubtedly, was the belief that it would lend added weight to the decision.
Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, points out that some scholars erroneously treat Merryman as a circuit court case.
Someone, GOPcapitalist or nolu chan, long ago posted a photo of the front page of the decision where it is labeled as an "at Chambers" decision. I quoted the photo above above. I searched a few thousand archived posts tonight but couldn't find the photo. Perhaps it was in a deleted thread. However, I did find reference to the front page as follows [emphasis mine, source is The Constitutional Puzzle of Habeas Corpus by Edward A Hartnett, a Seton Hall law professor, Link]. I extract a few key sentences below that indicate the original printed label and Taney's own handwritten version:
Although the report of the decision in Federal Cases ... includes a caption denominating the case as one decided by the Circuit Court for the District of Maryland in its April 1861 term, the reproduction of the original opinion is captioned, "Before the Chief Justice of the Supreme Court of the United States, at Chambers." ... See Carl B. Swisher, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: The Taney Period 1836–64, at 848 & n.25 (1974) ( referring to a draft in Chief Justice Taney's longhand and noting that Chief Justice Taney labeled his opinion "Before the Chief Justice of the Supreme Court of the United States at Chambers" ) ...
And it may well have been. But the legal proceedings were not done before the Supreme Court. let's look at the history provided in this Link. The Chief Justice passes the following order: "'In the matter of the petition of John Merryman, for a writ of habeas corpus: Ordered, this 26th day of May, A. D. 1861, that the writ of habeas corpus issue in this case, as prayed, and that the same be directed to General George Cadwalader, and be issued in the usual form, by Thomas Spicer, clerk of the circuit court of the United States in and for the district of Maryland, and that the said writ of habeas corpus be returnable at eleven o'clock, on Monday, the 27th of May 1861, at the circuit court room, in the Masonic Hall, in the city of Baltimore, before me, chief justice of the supreme court of United States. R. B. Taney." And in response, the Chief Justice's own clerk issues the following: "'District of Maryland, to wit: The United States of America, to General George Cadwalader, Greeting: You are hereby commanded to be and appear before the Honorable Roger B. Taney, chief justice of the supreme court of the United States, at the United States courtroom, in the Masonic Hall, in the city of Baltimore, on Monday, the 27th day of May 1861, at eleven o'clock in the morning, and that you have with you the body of John Merryman, of Baltimore county, and now in your custody, and that you certify and make known the day and cause of the caption and detention of the said John Merryman, and that you then and there, do, submit to, and receive whatsoever the said chief justice shall determine upon concerning you on this behalf, according to law, and have you then and there this writ. Witness, the Honorable R. B. Taney, chief justice of our supreme court, &c. Thomas Spicer, Clerk. Issued 26th May 1861."
Now if this were a matter before the Supreme Court then shouldn't it be identified as such instead of being issued in the District court? The Chief Justice ordered the writ, his Supreme Court clerk issued it, but it eminates from the District of Maryland and is heard in the district court. It was not a Supreme Court ruling or a Supreme Court decision. Constitutionally the Supreme Court had appellate jurisdiction and not original jurisdiction. Taney can't bypass the circuit court just because he wants to. His actions in issuing the writ may well have been in his role as a Supreme Court justice, they have that power. But his ruling was performed in his role as a circuit court judge.
That being the case, can it really be considered a true court decision? From USSC case Carper v. Fitzgerald in 1887: "The order of the judge that the papers be filed, and his order recorded in the circuit court, does not make his decision as judge a decision of the court." The judge in question in that sentence, by the way, was a circuit court judge and not a USSC justice, so there was no question at all to which court he belonged, but the court makes a clear distinction between a decision issued by him in a habeas case and a decision of the court.
In the reference I cited for Hartnett, Hartnett noted that the compilation of cases in Federal Cases that listed Merryman as a District Court case was not published until 1894. An error by the compiler.
It was filed in the District Court, not decided or issued as a District Court decision.
The Chief Justice ordered the writ, his Supreme Court clerk issued it, but it eminates from the District of Maryland and is heard in the district court. It was not a Supreme Court ruling or a Supreme Court decision. Constitutionally the Supreme Court had appellate jurisdiction and not original jurisdiction. Taney can't bypass the circuit court just because he wants to. His actions in issuing the writ may well have been in his role as a Supreme Court justice, they have that power. But his ruling was performed in his role as a circuit court judge.
The 1863 document image I posted lists it as an at chambers decision of the Chief Justice of the United States, not a Circuit Court decision. This is consistent with the Hartnett and Farber references I provided. Hartnett argues the following:
At the conclusion of the proceedings before him, Chief Justice Taney ordered "all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the District of Maryland," an order that scarcely would have been necessary if the proceedings actually had been conducted in that Circuit Court, but which may help to explain why the case frequently has been thought of as one before that Circuit Court.
And
Swisher, supra, at 847 (noting that "at that time and for many years thereafter opinions written at chambers were not usually printed in official reports"); id. at 849 n.26 (noting that although the Federal Cases citation to Merryman refers to the Circuit Court for the District of Maryland, this "is not to be taken as an admission on the part of the Chief Justice that the case was disposed of in that court" and that "[h]e continued to treat it as a decision by the Chief Justice at chambers").
Seems Taney got his decision on the printed record as an at chambers decision of the Chief Justice of the Supreme Court. Thank goodness he did. It is a profound well written document, and it would have been our loss if it had not been preserved.
And why would it be filed in the District Court if it were not a District Court matter. Are Supreme Court decisions routinely filed in district court?
One thing is clear, Ex Parte Merryman was not a Supreme Court decision. It was not heard by the full court, the matter did not meet the criteria necessary for a hearing by the Supreme Court, so for rustbucket or anyone else to hold it up as evidence that Lincoln's suspension of habeas corpus was unconstitutional is just plain false. At best, Ex Parte Merryman shows us how Chief Justice Taney would have voted had the matter appeared before the Supreme Court. But it did not. Taney's muddying the water by invoking his Chief Justice title notwithstanding.
I agree with the paper trail. The actual court hearing was held on May 27 and May 28, 1861. General Cadwallader did not show up at the hearing but sent an aide, Col. Lee to read his response. Here is a report of part of the hearing. From the Philadelphia Public Ledger of May 31, 1861 concerning the hearing on May 27.
Chief Justice -- Have you brought with you the body of John Merryman?
Col. Lee -- I have no instructions except to deliver the response which I have read to your honors.
Chief Justice -- The commanding officer declines to obey the writ?
Col. Lee -- After the communication I have made, my duties and powers are ended.
Chief Justice -- Gen. Cadwalader was by that writ commanded to produce the body of Mr. Merryman before me this morning, that the case might be heard, and the petitioner be either remanded to his custody or set at liberty, if held on insufficient grounds; but he has acted in disobedience to that high writ, and I direct that an attachment be at once issued against him, returnable before me at 12 o'clock to-morrow.
Col. Lee then retired, and Chief Justice Taney wrote the following order which he delivered to the clerk.
ORDER FOR ATTACHMENT
Ordered, That an attachment forthwith issue against General George Cadwalader for a contempt, in refusing to produce the body of John Merryman, according to a command of the writ of habeas corpus returnable and returned before me to day, and that said attachment be returned before me at twelve o'clock to-morrow, at the room of the Circuit Court.
R. B. TANEY
The Baltimore Sun version of that hearing had Col. Lee retiring after Taney ordered an attachment for Gen. Cadwallader but before Taney wrote it out.
Some 2,000 people turned out to hear the court hearing the following day. Those who couldn't get in the courtroom milled around in the street outside. At that hearing Washington Bonifant, the US Marshal, made his return to the writ of attachment issued by Taney. Then Taney made a statement noting that the marshal had the power to summon the posse comiatus to aid him to seizing General Cadwallader, but the power refusing obedience was so notoriously superior to any the marshal could command that he excused the marshal. He promised to put his opinion in writing and file it in the office of the Circuit Court.
Exactly. As the case I posted makes clear, there’s a distinct difference between the decision of a judge and the decision of a court. Even if it had been a decision of the Maryland Circuit, it could have been said to have been found unconstitutional by a court, but Taney’s opinion in support of his writ simply isn’t a decision by any court at all.
To make it a matter of public record as at chambers decisions were not published as a matter of course back then. It was clearly marked as an at chambers decision of the Chief Justice, not a District Court decision.
So you're saying Supreme Court decisions aren't matters of public record? I have a hard time believing that. Are the the workings of some Star Chamber? Made in secret and kept secret? Something the public has no right to know about? Hardly. Taney filed his decision with the Maryland District Court because that was the court where the matter lay, not becasue it was a Supreme Court decision that somehow couldn't be published.
And what about the jurisdictional question? You insist that Ex Parte Merryman was a Supreme Court decision, yet according to Article III the Supreme Court had appellate jurisdiction in this matter. So who rendered the original decision? And a Supreme Court decision handed down by a single justice speaking for the entire court. As I mentioned earlier, and at the risk of admitting my ignorance in this area, I'm not aware of a single Supreme Court case decided by a single justice. I always thought Supreme Court decisions needed a majority of the justice to agree, yet you say that single justices can act on a case alone. Can you provide me with other cases where a single justice issued a decision for the court so I can improve my understanding of the judiciary? I would really appreciate it.
The petition for the writ went directly to the Chief Justice in Washington, not to the District Court in Baltimore. Taney stated so himself in Ex Parte Merryman. As I have pointed out, the Judiciary Act of 1789 says:
And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.
Thus, the habeas corpus inquiry in this case was not a District Court matter. General Cadwallader's response to the writ of habeas corpus was addressed to Taney as Chief Justice of the Supreme Court, not the District Court. Taney's actual decision was listed as a decision of the Chief Justice of the Supreme Court, not the District Court. If a Supreme Court Justice can receive writs of habeas corpus, then he can decide if the defendant was being illegally held or if the writ was being denied. That's the purpose of a habeas corpus hearing. Taney's decision addressed that.
Taney's decision had the full force of the court behind it. The only reason the writ was not enforced was the army following Lincoln's command. Lincoln did not challenge Taney's decision which is still valid and cited in Supreme Court cases. He just ignored it knowing Taney couldn't fight the army.
So Martin Sheen, who has played General Robert E. Lee, somehow embodies Southern family values? Cmon already!
So you keep saying. And you insist that the Merryman case was a Supreme Court decision. But I'm still puzzled on how the Merryman case became a Supreme Court case to begin with given the constitutional restrictions on jurisdiction. And I'm also hoping that you can provide me with the names of some other cases where a single justice decided the matter for the whole court. I'm anxious to improve my wealth of knowledge. Can't you help me here?
Probably one of the most famous single-justice decisions was that of Justice Hugo Black in supporting the contested election of Lyndon Johnson in 1948. Black did this in the face of the fact that the full court itself could have heard the case in three weeks. Black's ruling put Johnson into the Senate despite seemingly clear evidence that Johnson had lost the election.
That would have been in his capacity as a Circuit Court Judge. It is the Circuit making the decision, not the Supreme Court. The losing side would have had the option of appealing to the full court (minus Black) if they chose to.
In the past it is was common for members of the SCOTUS to rule on cases within their assigned circuits.
No it didn't, because it wasn't a court decision. As the USSC said in Carper v. Fitzgerald, "The order of the judge that the papers be filed, and his order recorded in the circuit court, does not make his decision as judge a decision of the court."
That is not at all true, as Robert A Caro details in his book "The Years of Lyndon Johnson: Means of Assent". What Justice Black did, in his role as the justice responsible for the 5th Circuit, was issue a stay of the lower courts injuction pending a review by the entire Supreme Court. On October 5th the Supreme Court refused to hear Coke Stevenson's petition to consider Justice Black's stay. So it wasn't a case of a single justice speaking for the entire court, it was a single justice acting so the matter could be brought before the entire court, should the court choose to hear it.
Care to try again?
Justice O'Connor once issued an in chambers ruling granting relief although the applicant did not seek relief from a lower court first, 480 U.S. 1301, issued as a Supreme Court in chambers ruling. She did it as the circuit justice, but the opinion appears under the Supreme Court heading. From the ruling:
The timing and substance of the Court of Appeal's order under the exigencies of this case made compliance with Rule 44.4 of this Court, requiring that a motion for a stay first be filed with the court below, both virtually impossible and legally futile. I conclude that this situation presents one of those rare, extraordinary circumstances in which request for a stay before the Court of Appeals is not required under the Rule.
Then there is the example of two individual justices issuing differing opinions on the opposite sides of a stay. They can't both be the circuit justice for the case in question, the bombing of Cambodia. The Second Circuit issued a stay on the injunction against the bombing. Justice Thurgood Marshall was asked to vacate the stay; he declined. Justice William O. Douglas then vacated the stay in a single justice ruling. Justice Marshall then poled the other seven members of the Court, and they agreed that he should grant the stay, which he did.
Justice Douglas had done something similar in the Rosenberg case, where he stayed the execution of Ethyl and Julius Rosenberg, something the Supreme Court had earlier refused to do. His stay was in effect until the Court was called back in session a couple of days later from their six-month vacation, and Douglas's stay was put aside.
If Lincoln wanted to follow the rule of law, he could have appealed Taney's ruling to the whole Supreme Court. He didn't. I suspect that he would have lost, and it would have been clear that he didn't have the legal authority to suspend habeas corpus. He couldn't risk that, but he had enough votes for Congress to later indemnify him for his habeas action and authorize him to suspend habeas corpus in 1862 or 1863 (I forget which). Why did they do those things if Lincoln already had the right to suspend habeas corpus on his own?
But again, like Taney and Black she was acting in her role as head of the district court and not for the entire Supreme Court. And again, like Black, it was not a descision. Justice O'Conner issued a stay, a temporary reprieve from a lower court order, at the request of the airlines pending the filing and disposition of a petition for certiorari for review by the Ninth Circuit. Read the desicion yourself and it's clear. Link
Justice Douglas had done something similar in the Rosenberg case, where he stayed the execution of Ethyl and Julius Rosenberg, something the Supreme Court had earlier refused to do. His stay was in effect until the Court was called back in session a couple of days later from their six-month vacation, and Douglas's stay was put aside.
Again, Justice Douglas issues a stay. A temporary postponement. He did not issue a decision in the name of the entire court but halted a proceeding to allow the entire court to consider it. Stays are a whole lot different from decisions. And if this is the path you're going down then I will stipulate for the record (I love talking legalese) that the Supreme Court justices issue thousands of stays and order and opinions as individuals. Just about every execution in this country involves a stay from the Supreme Court justice at one point or another. But if is your intent to define these actions as decisions made in the name of the entire court, and to assign them the same weight as full court decisions then you are completely wrong.
If Lincoln wanted to follow the rule of law, he could have appealed Taney's ruling to the whole Supreme Court.
Does this imply a change in your position? Earlier you were describing Taney's actions as a Supreme Court decision, and as such who was Lincoln supposed to appeal it to? But if it was, in fact, a Discrict Court decision then sure, it could have been appealed. So which is it now?
Ex Parte Merryman was a district court decision. And Lincoln could have, and probably should have appealed it to the entire court. But the Supreme Court was not in session and would not be in session until the fall. Lincoln was fighting a rebellion and by that time the original suspension had lapsed. Still, I agree that Lincoln probably should have taken the matter before the entire court.
I suspect that he would have lost, and it would have been clear that he didn't have the legal authority to suspend habeas corpus.
I suspect you may be right. But we'll never know.
Why did they do those things if Lincoln already had the right to suspend habeas corpus on his own?
Why not?
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