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).

First, the Taney warrant. There is no evidence supporting this contention except for 2 or 3 second person accounts.

Wrong. The most detailed and specific account is first hand by Ward Hill Lamon. Lamon is treated as a credible source by Lincoln scholars and in fact is our only first hand source for many of the most famous anecdotes about Lincoln's life. So why shouldn't we also believe his anecdote about the arrest plot against Taney?

There is no physical evidence, no documentation, no escaping the fact that Taney never spent a day in jail but remained on the bench until he died.

Red Herring. The issue has never been whether Taney spent time in jail but rather as to the existence of a plot to arrest him that got dropped before it was executed. As clearly noted by Lamon, the plot was abandoned. Brown corroborates this as his conversation with Taney indicates knowledge that the arrest had been plotted but decided against.

The physical evidence supporting the claim is non-existent.

Physical evidence discovered to date:

1. First hand account by Ward Hill Lamon
2. Two corroborating second hand accounts by George Brown and Benjamin Curtis
3. Corroborating evidence that Lincoln employed similar practices against another federal judge in Washington during a habeas corpus case a few months later.

Aha, says Tommy. We have circumstantial evidence. We have Ward Lamon.

How is Ward Lamon circumstantial? He was an eyewitness and, as US Marshall in DC, was the person (henchman?) Lincoln gave the warrant to.

We are to believe that Ward Lamon, by his account, was given the order to arrest Taney by Lincoln personally and just didn't do it.

Or, perhaps, cooler heads prevailed and Lamon was given verbal instructions to hold off.

Wait, wait, yells Tommy, the icing on the cake is yet to come. Judge Merrick! Don't forget Judge Merrick! And here DiLusional goes off on a tangent. Nowhere in his account does Judge Merrick mention being jailed.

Yeah, cause they placed him under house arrest.

Nowhere is an arrest warrant mentioned.

Evidently Lincoln didn't think he needed one (he purported himself to have suspended habeas corpus and was arresting people without cause or charges all over the country, remember?). If you read the case though you will find several documents provided to the court by the provost marshall's office indicating that his activities in the case had been directly approved by Lincoln.

Nowhere does DiLusional say that Judge Merrick remained on the bench until the Circuit Court of the District of Columbia was replaced in 1863 by the Supreme Court of D.C.

Why would he need to include immaterial details? The point is that Merrick was house arrested for the duration of the Murphy case in order to prevent him from attending its hearing before the full circuit panel review.

And most of all nowhere does Tommy offer any support that this was done at the order of Abraham Lincoln.

Read the case (DiLorenzo gave you the full citation for that purpose). The provost marshall's documents repeatedly and explicitly state that they were acting directly on orders from Saint Abe.

Here's a nice little excerpt from the record of proceedings in the full panel hearing (minus Merrick, of course, who was under house arrest) of the D.C. Circuit Court over the case of Murphy v. Porter. They demonstrate conclusively that Lincoln's dirty hands were all over Porter's activities.

AT LAW: The Marshal of the District was directed not to execute the writ upon Provost-Marshal Porter, and to make return. That he was ordered by the President of the United States not to serve the same, as the writ of habeas corpus had been suspended as regards soldiers in the army of the United States, within said district, by the order of the President.
... PROCEEDINGS FOR OCTOBER 21, 1861 (note - the referenced letter from Judge Merrick is excerpted in DiLorenzo's article):

The reading of the communication (from Judge Merrick) having been concluded, Judge Dunlop announced that the two remaining Judges (himself and Judge Morsell) had, after consultation, decided that the letter should be filed as requested by Judge Merrick, and it was so ordered.
They also thought it might, as the writ (of habeas corpus) had been regularly issued, to state that the matter was now before the Court to be tried.
The statement of their brother Judge presented a case where the progress of law is obstructed. It was the duty of the Court to afford the remedy, and, if the facts are as stated, to cause the law to be respected.
As the Provost-Marshal had obstructed a process of this Court, it would order a rule to be served on General Andrew Porter, to appear before the Court and show cause why an attachment for contempt should not issue against him.
Judge Morsell said that this was a palpable and gross obstruction to the administration of justice, to prevent a Judge of this Court from taking his seat because he issued a writ just such as the law requires.
The placing of a sentinel before Judge Merrick's house was evidently for the purpose of embarrassing him in this particular subject, and to prevent his appearance in Court.
He (Judge Morsell) would make the rule broader so as to have the Provost satisfy the Court as to both matters. The Court has its duty to do, a duty the Judges are sworn to do, and that duty is the administration of justice according to law.
What is the real state of things? If martial law is to be our guide, we look to the President of the United States to say so. He (Judge Morsell) did not pretend to controvert the right of the President to proclaim martial law, but let him issue his proclamation. The Judges have their duty to do under the law, and are liable to be punished if they do not do it. I intend to do my duty, and vindicate the character of this Court as long as I sit here. I am an old man. The following notice was written off by the Judge: In the Circuit Court of the District of Columbia The Clerk is directed to file the letter of Judge Merrick, addressed this day to the Chief Judge of the Court. And it is ordered this 22d day of October, 1861, that a rule to show cause be issued against General Andrew Porter, Provost-Marshal of the District of Columbia, requiring him, on or before the 26th of October, 1861, to show cause to this Court why an attachment of contempt should not issue against him for obstructing the process and course of justice and administration of it in this Court, in the particulars set forth in Judge Merrick's letter, that a copy of said letter accompanying the rule to show cause, and that the same be returnable on Saturday, the 26th of October, at 10 A. M. of that day, at the Courtroom in the City Hall, Washington. By order of the Court. Test. JOHN A. SMITH, Clerk.

Let's recap what has happened so far. First, Murphy's father petitioned the court for a writ of habeas corpus on behalf of his son, an underage minor being held to service in the union army. Judge Merrick recieved the case and issued the writ of habeas corpus for Murphy, delivering a copy to Murphy's attorney (Foley). Shortly thereafter Foley delivered a copy of the writ to Provost Marshall Porter, who subsequently refused it and had Foley himself imprisoned. Later that evening when Judge Merrick returned home he found that Porter had stationed armed sentinels at his house placing him under house arrest and preventing him from attending the full circuit's panel as the case advanced. Merrick sent notice of this situation to the court, which convened in his absence to hear the case. Finding that Porter had obstructed the process of justice by preventing Merrick's presence, the court ordered Merrick's letter entered into the record and a summons issued to Porter to show cause as to why he should not be held in contempt for his actions. The panel, absent Merrick, convened again to deal with the arising contempt case over Porter only to find that he had shunned the summons to show cause as well. That is where we pick up now...

In the Circuit Court on Saturday, October 26, 1861, Judges Dunlop and Morsell being present:
The Court asked the clerk if there had been any return to the writ issued against General Porter, the Provost-Marshal of this city.
The clerk answered there was none.
Mr. Carrington, the District Attorney, presented in behalf of the Deputy-Marshal (Mr. Philips) a paper, with the affidavit of Mr. Philips, stating that the rule had not been served, because he had been ordered by the President not to serve it, and because the privilege of the writ of habeas corpus had been suspended for the present by the President, in regard to soldiers in the army of the United States, within the District of Columbia.

As you can see, Porter's response through one of his henchmen was blunt in its disregard of the court. He told them point blank that he didn't have to acknowledge their orders and contempt proceeding because Saint Abe had authorized him to act as he did! Next we go to the ruling of the court, which, though strongly worded, went ignored by Saint Abe and his henchmen just like Merryman and at least three other federal court rulings against Lincoln over habeas corpus. You will also note that, just like the case heard by Taney, Lincoln provided absolutely no notice of his many orders to the court until AFTER the case had arisen

Judge Dunlop, after holding the above under advisement announced he decision of the Court in the case, as follows:
The return made by Deputy Marshal the 26th of Oct., 1861, we will order to be filed, though we do not doubt our power to regard it as insufficient in law, and proceed against the officer who has made it.
The existing condition of the country makes it plain that that officer is powerless against the vast military force of the Executive, subject to his will and order as Commander-in-Chief of the Army and Navy of the United States.
Assuming the verity of the return, which has been made under oath, the case presented is without a parallel in the judicial history of the United States, and involves the free action and efficiency of the Judges of this Court.
The President, charged by the Constitution to take care that the laws be executed, has seen fit to arrest the process of this Court, and to forbid the Deputy Marshal to execute it. It does not involve merely the question of the power of the Executive in civil war to suspend the great writ of freedom, the habeas corpus.
When this rule was ordered to give efficiency to that writ, no notice had been given by the President to the Courts of the country of such suspension here, now first announced to us, and it will hardly be maintained that the suspension could be retrospective.
The rule on this case, therefore, whatever may be the President's power over the writ of habeas corpus, was lawfully ordered, as well as the writ on which it was founded.
The facts on which the rule was ordered by the Court are assumed to be true as respects the President, because the President had them before him, and has not denied them, but forbade the Deputy Marshal to serve the rule on General Andrew Porter.
The President, we think, assumes the responsibility of the acts of General Porter, set forth in the rule, and sanctions them by his orders to Deputy Marshal Philips not to serve the process on the Provost Marshal.
The issue ought to be and is with the President, and we have no physical power to enforce the lawful process of this Court on his military subordinates against the President's prohibition.

In summary:
1. Judge Merrick issues a writ of habeas corpus to the attorney for Murphy, an underage minor being detained in the union army.
2. Provost Marshall Porter refused the writ, imprisons Murphy's attorney, and places Judge Merrick under house arrest to prevent his attendance at the circuit court panel on the case.
3. The circuit panel convenes, absent Merrick, and rules Porter to have obstructed the court's process. They summon Porter to show cause as to why he should not be held in contempt.
4. Lincoln personally intervenes and blocks the court's rule from being delivered to Porter. Porter's surrogate responds to the court notifying them of Lincoln's authorization for Porter's actions.
5. The court affirms its rule and strongly condemns the illegality of Lincoln's action but concedes that it is unlikely to be obeyed as Lincoln is employing a superior military power to obstruct the court from enforcing its rulings.

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