Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

Lew Rockwell.com ^ | August 19, 2004 | Thomas J. DiLorenzo

[TexConfederate1861]

Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.

An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.

As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).

All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."

The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.

Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)

But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.

Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."

I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).

The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:

After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia

As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."

Exactly right.

August 19, 2004

Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).

Copyright © 2004 LewRockwell.com

[nolu chan]

[GOPcap #1387] "INNOCENT UNTIL PROVEN GUILTY - EVER HEARD OF IT?"

[cr #1391 to GOPcap] "Yes, it is a constitutional principle, and did not apply to insurrectionists who renounced the very concept."

That's odd. Jefferson Davis was charged, but then the government decided it was unable to prove its charges and dropped the case. They did not have much success outside of military tribunals.

John Harrison Surratt was charged and tried. The government was unable to obtain a conviction and dropped that case as well.

If "innocent until proven guilty" did not apply to insurrectionists, whyever were they set free? Especially that Surratt fellow.

[nolu chan]

CAPITAN_REFUGIO LOST IN SPACE AGAIN

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[capitan_refugio #1279] (emphasis added)

LINK to cr #1279

To: nolu chan

From the Hamdi v Rumsfeld decision, comes this short review of Mitchell. I saw the case referenced several times, but I have not taken time to look it up yet, so I will limit my comments.

"The Fourth Circuit’s ruling also is entirely inconsistent with this Court’s long experience with the review of Executive branch seizures. In Mitchell v. Harmony, this Court reviewed and rejected the military’s seizure of a citizen’s property in Mexico during the Mexican-American war. 54 U.S. (13 How.) at 128-29. The plaintiff, a naturalized American businessman, filed an action against a U.S. colonel to recover the value of his property seized by the military. The government responded that the businessman had a “design” to trade with the enemy, and that the decision of the military commander to seize the property “must be entitled to some respect.” Id. at 118, 120.

"Rejecting these arguments, Chief Justice Taney’s opinion for the Court found the government’s defense to be based on “rumors which reached the commanding officer.” Id. at 133. “Mere suspicions of an illegal intention,” the Court stated, “will not authorize a military officer to seize and detain the property of an American citizen. The fact that such an intention existed must be shown; and of that there is no evidence.” Id. If an Article III court, consistent with separation of powers principles, can inquire into the seizure of a citizen’s property by the military within a country at war with the United States as in Harmony, these same principles surely pose no barrier to an inquiry into the seizure of the citizen himself."

It seems that Mitchell is not applicable to the situation of the South in the ACW. By their insurrection, the southern rebels forsook their claim to United States citizenship. I do not see how they could assert legal protections, if those protections were even applicable, from the document and country they renounced.

1,279 posted on 09/16/2004 11:39:32 PM CDT by capitan_refugio
[ Post Reply | Private Reply | To 1277 | View Replies | Report Abuse ]

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THE SUPREME COURT CASE OF HAMDI V. RUMSFELD MAY BE FOUND AT THE BELOW LINK.

THE QUOTE ATTRIBUTED TO IT MAY NOT BE FOUND THERE.

FINDLAW link to decision

HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE, et al.

certiorari to the united states court of appeals for the fourth circuit

No. 03-6696. Argued April 28, 2004--Decided June 28, 2004

---

YOU WILL FIND CAPITAN'S QUOTE "From the Hamdi v. Rumsfeld decision" HERE.

THIS IS THE PETITION FOR THE WRIT OF CERTIORARI

THIS IS WRITTEN, IN ITS ENTIRETY, BY ATTORNEYS FOR HAMDI.

FINDLAW link to PETITION FOR WRIT OF CERT

FIRST PAGE OF THIS PDF FILE

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BOTTOM OF PAGE 24 AND CONTINUATION ON PAGE 25

[Gianni]

[CR] That particular cleansing (the blight of human slavery and those who would enslave) started, one might argue, with the emancipation proclamation. You are evidence, however, of a job unfinished.

Whiskeypapa, are you sure that isn't you?

How's about if I don't let you get away with this. We were not discussing slavery. We were not discussing the perpetuation of slavery. You cannot make this about slavery any more than Lincoln could have. We were discussing subjugation of the sovereign people to a metaphysical legal entity, detectable only by its normative aura.

You did not lament the existance of slavers, you lamented the existance of anyone who doesn't toe the federal line, flat-out said that you desired their extinction, and said that anything that was done to bring it about was justified.

[Gianni]

[CR] Not the people. Just the idea. The idea of a permanent slave state in North America was, and remains, repugnant to any civilized person.

Check this out, I'm going to be "Lincolnite for a post."

The idea fo a permanent slave state in North America was repugnant to any civilized person, except Abraham Lincoln, who promised a permanent slave state in North America, but only because he was forced to, and in doing so his words were really quite poetic, in fact the man himself was poetry in motion, and he was repulsed by the notion of a permanent slave state, but he was just too darned complex for you idiots to understand and that is why he promised a permanent slave state in spite of the fact that he found it repugnant because he knew that eventually it would be the death of the permanent slave state that he'd just promised in poetic language because even though he was a racist he wasn't as bad as others and in his time being only a little bit racist was better than being a lot racist and since he had Bill Sherman to kill everyone who disagreed with him in perfectly justified fashion I win ha ha.

[stand watie]

it's because damnyankees ALWAYS lie. that is what LIARS do: LIE!

FACT.

see previous post.

free dixie,sw

[stand watie]

IGNORANCE & LIES posted twice do NOT become true by repitition.

free dixie,sw

[stand watie]

once again, NONE of what you say happened at Lawrence REALLY happened.

in point of fact, NO CIVILIAN was injured there, much less killed.

EVERY SINGLE one of the dead were either Jayhawkers, 5th KS Volunteer Cavalry or a Redleg.

ALL of the dead were MURDERERS/RAPISTS/ROBBERS/ARSONIST, who had committed VERIFIED atrocites against CIVILIANS. EVERY ONE!

you have been LIED TO and made a FOOL of by the LIARS of the REVISIONIST school.

free dixie,sw

[stand watie]

what UTTER HOGWASH.

please go tell Sirena of this forum that the COLDBLOODED MURDER of her G-G-Grandfather,a CSA PVT soldier late of the 4th SC Cavalry, by the staff of Point Lookout DEATH CAMP was PERFECTLY OK.

but i would suggest that you "stand out of range" when you do so.

btw, in the last 24 hours i've gotten 4 reports from freepers of damnyankee atrocities committed against THEIR families.

"black flag over dixie" appears to be nothing more or less than a regurgitation of lies, propaganda,wishful thinking & nonsense, promulgated by the REVISIONISTS in the hope that they can turn southern eyes away from what was done in the name of the union to their families. there is, to the knowledge of "academic peer reviewers", NOTHING NEW in the book. (and NO i have NOT read the book. i don't buy books that won't pass the "smell test". what i do read are the ORIGIONAL source documents.)

free dixie,sw

[stand watie]

actually the term , according to the USPS exhibit at the National POW Center, was coined at Point Lookout DEATH CAMP.

free dixie,sw

[stand watie]

TRUE!

free dixie,sw

[stand watie]

these actsa are actually called: WAR CRIMES,crimes against humanity & crimes against peace.

free dixie,sw

[stand watie]

perhaps not. BUT the LAW OF WAR does apply in EVERY war SITUATION in EVERY country, according to the US Army publication, THE LAW OF LAND WARFARE.

CIVILIZED nations have followed those precepts, in one form or another, for about 400 years. (you could, i suppose, argue the the union armies were NOT from a civilized nation, but that wouldn't go over well with the unionist loonies here, though most of the CSA descendants would HAPPILY agree.)

free dixie,sw

[lentulusgracchus]

LOL!!

[lentulusgracchus]

We were discussing subjugation of the sovereign people to a metaphysical legal entity, detectable only by its normative aura.

This is a useful concept. Of course, you are describing precisely what lawyers, ideologues, and presumably control freaks of other varieties so frequently do to innocent people who deserve better.

The intellectual conceit being the plaything of its creators, the result is that the People become the plaything of the manipulators. Quod erat desideratum.

You did not lament the existance of slavers, you lamented the existance of anyone who doesn't toe the federal line, flat-out said that you desired their extinction, and said that anything that was done to bring it about was justified. [Emphasis added.]

This is a useful distinction and a salient point worth repeating.

The morally caustic advocacy of epic violence simply underlines the original outrage.

[stand watie]

as only 5-6% of southerners EVER owned a slave AND many of the slavers collaborated with the union to KEEP their slaves (lincoln, the GREAT BLOODSPILLER & TYRANT, was perfectly willing to "protect the peculiar institution, where it now exists, forever by Constitutional Amendment")so your argument, such as it is, falls of it's own weight.

in point of fact, the VAST MAJORITY of damnyankee atrocities were committed against POWs,"the very poorest of the poor", "hill trash", Roman Catholics, Jews,Indians & Blacks (both free & slave), because the WAR CRIMINALS KNEW that they would NOT be punished for their WAR CRIMES against HELPLESS PEOPLE that has no political power, were UNarmed & had little or no money.

free dixie,sw

[stand watie]

GEN MacArthur NEVER committed WAR CRIMES against the Japanese. the same cannot be said for the "filth in blue", for whom commission of ATROCITIES was an INTENTIONAL portion of the overall union war plan.

particularly, MIStreatment of CSA POWs was ENCOURAGED by a joint resolution of the US Congress.

free dixie,sw

[GOPcapitalist]

No trial is required. You are not operating under civil law - but rather, the laws of war.

I think LG's just pinged the heart of your position and this only affirms it. You simply cannot justify or fully defend Lincoln under the guise of the Constitution, so rather than concede a fault you take to defending the indefensible and celebrating those who THROW OFF the Constitution in favor of pure military despotism. Stalin would be proud of you.

[lentulusgracchus]

these actsa are actually called: WAR CRIMES....

Wait until he goes into Count Vigo mode:

"Atop a mountain of skulls, I ruled from a throne of blood!!!"

Made a good movie line, really dramatic and all, but it's a shame that anyone would actually advocate that for his own countrymen, over political differences. (They want to rule themselves, as opposed to letting me rule them from a throne of blood, etc. etc.)

Guys like that justify the secessionists morally by the words out of their own mouths, that enliven and reanimate the dry historical vignettes of Sherman burning and salting Georgia.

Even my own dad, an Indiana Hoosier and Lincoln admirer from birth (my great-grandfather -- my dad's maternal grandfather -- actually saw Lincoln on his bier on his way home to Springfield), was dismayed by the idea that American troops would salt the earth of an American state.

He said you could see the path the army took on aerial photographs from the 1930's and 40's -- the salting had damaged the foliage enough that it still showed. (Wonder what Landsat/SPOT imagery would show today?)

You are right to wonder at the kind of mind that did that.

[GOPcapitalist]

Caught YET AGAIN presenting material from outside of the decision as if it were the majority ruling, eh capitan? How many times is that now?

You did it with the attorney arguments in the Prize Cases.

You did it with the dissent in Bollman

You did it with the dissent in Hamdi

Now you're doing it with the petition in Hamdi.

Simply put, it would seem that you are intentionally perpetrating a fraud and hoping that nobody will double check your work to catch it. But we all know that perpetrating frauds is what Stalinists do, so you get caught every single time.

[lentulusgracchus]

Stalin would be proud of you.

So would Count Vigo.

Yeah, that's right, capitan, I'm talking about you over here. Wanna courtesy ping? Earn it.