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

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."

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).

The United Kingdom or Great Britain?

Great Britain is the term used for the island containing the contiguous nations¹ of England, Scotland and Wales. Great Britain is used to distinguish Britain from Brittania Minor, or Brittany, in France. The term "Great Britain" was officially used only after King James I (who was also James VI of Scotland) acceded to the throne of England and Wales in 1603, styling himself King of Great Britain, although legislative union between Scotland and England did not take place until 1707.

England, Scotland and Wales together with the province of Northern Ireland, form the country officially known as "The United Kingdom of Great Britain and Northern Ireland" or simply the United Kingdom.

The United Kingdom came into being in 1801 following the Irish Union, although the greater part of Ireland gained independence in 1921 to form the Irish Republic (or Eire). The majority of the people in Northern Ireland have wished to remain part of the U.K., although a minority wish unification with the Irish Republic.

The term "England" is sometimes erroneously used by both natives of England (the English) and those outside our country to refer to the United Kingdom. Natives of the other constituent nations of the U.K. find such usage offensive, so it is best avoided! Although there is no adjective for the "United Kingdom" the term "British" is acceptable, although has to be used with care and sensitivity in Northern Ireland, where one section of the community would be happy being so-described, whereas the other would most definitely regard themselves as "Irish".

The United Kingdom does not include the Isle of Man (which lies between Great Britain and the island of Ireland) and the Channel Islands (which lie off the North coast of France). These are direct dependencies of the British Crown, maintaining their own legislative, monetary and taxation systems. Each have their own parliaments and a Governor, appointed by the Crown.

The British Isles is used more loosely to describe the main island of Great Britain together with its associated islands (including the Isle of Man). It has no legal significance.

The Channel Islands, which include the independent States of Jersey, Guernsey, Alderney and Sark, are the only remaining components of the "Duchy of Normandy" which still belong to the British Crown.

The United Kingdom (including the Channel Islands, but without the Isle of Man) is a member of the European Union. The Isle of Man maintains free-trade agreements with the EU, but is not a member.

¹ Where a "nation" is defined as "a body of people marked off by common descent, language, culture or historical tradition" [ Chambers Everyday Dictionary ]

http://www.geo.ed.ac.uk/home/scotland/britain.html

"Government is instituted for the common good...the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it. --John Adams"

"Lincoln's refutation of secession as a constitutional right rested entirely upon the truth of the doctrine that the just powers of government are derived from the consent of the governed. That, according to Lincoln, was the 'sheet anchor' of the republican form of government embodied in the constitution and guaranteed by it to the states. 'We the people' possessed the authority to ordain and establish the Constitution, because those who ratified it had been endowed by their Creator with certain unalienable rights. Those rights entitle any people to alter or abolish any government that does not secure those rights and institute a government that, in their judgment, will do so and thereby provide for their safety and happiness. Those rights were the reason or reasons informing the authority of 'We the people' and the ground of the republican form of government. The moral rightness of republican government was moreover identical, in principle, with the moral wrongness of slavery. Republican government could not be right unless slavery were wrong.

"The rights of man were both natural and divine. they possessed their authority from God and nature. They were knowable by the exercise of unassisted reason and were the heritage of all men everywhere...

"According to Alexander Stephen's Cornerstone speech in 1861, the natural rights philosophy of the Founding Fathers had been replaced in all scientifically enlightened minds by the doctrine of racial inequality. Stephens never expounded the new 'science,' but it may be assumed that a decisive contributor to that science was John C. Calhoun. There can be no doubt that it was Calhoun who supplied the 'ingenious sophism' that had 'sugar coated' rebellion and brought the public mind of the South to believe that secession was a constitutional right."

Harry Jaffa, A New Birth of Freedom

[cr #2991] Then you lived in the United Kingdom, on the island of Ireland; or perhaps one of the lesser islands?

Why sure, I was on Ireland, the greatest of all the islands.

I lived for a few years in Northern Ireland. I was married in Northern Ireland. My children were born in Northern Ireland. I also lived for several years in Scotland. I also served in a NATO command which was about one-third BA/RN/RAF and one-third USA/USN/USAF.

[cr #2991] Great Britain is an island.

As a political entity, Great Britain is comprised of more than one island. For example, it would include the Shetland Islands and the Orkney Islands.

[cr #2991] Colloquially it is sometimes used as the name of the country, as the Encyclopaedia Britannica suggests ("although the name Britain is sometimes used to refer to the United Kingdom as a whole").

What is used and what is accurate are not necessarily the same. In Europe, all Americans are Yanks or Yankees. Europeans "know" that Americans are Yankees. When a European of limited English and limited knowledge of U.S. history uses the term Yankee, it may be amusing to watch a gentleman of the Southern persuasion attempt to explain the he is not a Yankee.

Britain cannot be correctly used to refer to the United Kingdom as a whole. The Irish are not British, either geographically or ethnically. The Irish are Celts, pronounced with a hard c as if spelled kelts.

The term British is applied generically sometimes, as no equivalent term exists, such as UKish. Referring to the British Army is perfectly acceptable. In Northern Ireland, calling a Catholic British will draw a vigorous dissent, without fail.

Once it is pointed out by a Scot, a visiting Yank may notice something on British television. When a Scot or a Welshman achieves something good, the do-gooder is referred to as British. However, if he does something bad or criminal, then the do-badder is referred to as a Scot or Welshman.

The people of Scotland are not Scotch. They will tell you so. Scotch is a divine liquid given to them by the gods and stored in bottles. The people are Scottish.

The term Great Britain is distinct from Petit Britain or Brittania Minor. Part of ancient Britain is in France.

As a United Nations member state, the official title is: "United Kingdom of Great Britain and Northern Ireland." [ LINK ]

Some sources note that GB appears acceptable to the International Olympic Committee. They are not an international political body any more than is FIFA, the International Football (Soccer) Association. In the World Cup, governed by FIFA, the nations of the world compete. As an oddity, from the UK come the nations of England, Scotland, Wales, and Northern Ireland, each fielding its own national team and competing as a separate nation under its own national flag.

[cr #2991] And in case you missed the post to GOPc, the term "Great Britain," as used in its present form, is attributable to James I of England.

Here your assertion is clearly incorrect. The term was first officially used by King James, but it originated centuries earlier.

LINK
Why "Great" Britain rather than Britain?
There are in fact two Britains: the island of Britain in the British Isles and the land of Britain in France. In French these are known as Grande Bretagne and Bretagne, in English as Great Britain and Brittany. The word "Great" in this context has its old meaning of "big" as in "she was great with child" or "Greater London". Likewise, the ending "-y" on the end of "Brittany" has the meaning "Little", as in "doggy", meaning "small dog", or "Jimmy", meaning "little Jim". During medieval times, the British Isles were referred to as Britannia major and Britannia minor (as in Geoffrey of Monmouth's Historia Regum Britanniae). The term "Bretayne the grete" was used by chroniclers as early as 1338, but it was not used officially until King James I proclaimed himself "King of Great Britain" on 20 October 1604 to avoid the more cumbersome title "King of England and Scotland".
From about the 16th century to the 20th century, the political and/or military control of Great Britain and the United Kingdom extended over a large number of territories all around the world, and all those entities together were known as the "British Empire".

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LINK
The word Britain is used to refer to

the United Kingdom (UK): i.e. the United Kingdom of Great Britain and Northern Ireland (from 1927), the United Kingdom of Great Britain and Ireland (1801-1927) or the United Kingdom of Great Britain (1707-1801).
the island of Great Britain (with its outlying islands) consisting of the countries of England, Scotland, and Wales. Note that Great Britain is (usually) an incorrect way of referring to the United Kingdom, as Great Britain is only the large island which constitutes most of the country's territory.

The word British can indicate association with Britain in either of the above senses (i.e. the country or the island), or with

the British Empire and its forces, which at one time included a quarter of the world's population,
the brythonic Celts of Great Britain (the "ancient Britons", distinct from the goidelic Celts of Ireland), or
the British Isles

Evolution of the words
The meanings of Britain and British have evolved over time and as they have gained political significance.
In 325 BC the Greek Pytheas of Massalia visited a group of islands which he called Pretaniké, the principal ones being Albionon (Albion) and Ierne (Erin). (The records of this visit date from much more recent times, so there is room for these details to be disputed.) To linguists, this suggests the Brythonic inhabitants called themselves Priteni.
In manuscripts of the Anglo-Saxon chronicle there is a reference to the inhabitants having migrated to the islands from "Armenia" but most historians believe this was a mistake in transcription and that the actual origin of the islanders was Armorica.
Because of resistance to Roman rule in Armorica (which was supported by Celtic aristocrats in the islands) Julius Caesar responded with two invasions of the main island in 55 and 54 BC.
Some believe that when the Romans took over the southern part of Great Britain they named the island after the Brigantes, one of the largest Celtic Tribes.
However the Romans derived the name, they called their possessions Britannia. The earlier Celtic inhabitants became known as Britons and the island as Britain. After the fall of the Roman Empire, the name Britannia largely fell into abeyance and tended to be used in an historical sense, referring to the Roman possessions.
Some centuries after the Romans had left, some of the Britons returned to the near continent. Further centuries later Geoffrey of Monmouth used the names Britannia minor to refer to the Armorican region they had returned to and Britannia major for the island. Only by the late Middle Ages did the concept of "Britain" come to represent anything more modern than the Romans. By then, the continental region was known as Brittany and the island as Great Britain (compare the French names Bretagne and Grande Bretagne).
The kingdoms established on the island of Great Britain were perceived to be dominant over the whole archipelago, which was known as the British Isles. During the reign of Queen Elizabeth I of England, the queen's astrologer and alchemist, John Dee, wrote mystical volumes predicting a British Empire and using the terms "Great Britain" and "Britannia". After Elizabeth's death in 1603 the kingdoms shared one King, James VI of Scotland and I of England. On 20 October 1604 he proclaimed himself "King of Great Brittaine" (thus including Wales and also avoiding the cumbersome title "King of England and Scotland"). This title was eventually adopted formally in 1707 when the Kingdom of Great Britain was formed. The adjective used for the kingdom was British.
Since its formation, the kingdom was enlarged in 1801 by the addition of the island of Ireland - already ruled by the British monarchy to become the United Kingdom of Great Britain and Ireland - and was then reduced in 1922 by the independence of the Irish Free State, now the Republic of Ireland. The name of the kingdom changed accordingly, in 1927, becoming The United Kingdom of Great Britain and Northern Ireland. To some writers the meaning of British and Britain have changed with the Kingdom. The words British citizen is now used to indicate United Kingdom(UK) nationality because there is no suitable substitute. However, to other writers Britain is still synonymous with only the island of Great Britain.
Other terms also cause confusion. Great Britain is indisputedly the name of the large island, but is occasionally used to mean the UK, for instance in the modern Olympic Games. As abbreviations, both UK and GB are often used for the United Kingdom, while GB is only rarely restricted to Great Britain. The British Isles is still a geographical term for the archipelago, but it can also still be seen as implying dominance by Great Britain, so it is sometimes avoided. The prefix Anglo, historically meaning English, is sometimes used to denote the UK, as in Anglo-Irish. See the respective articles.

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