Posted on 08/20/2004 5:43:21 AM PDT by 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
No. He also delivered documentation to the court showing that Lincoln had personally intervened to block the delivery of the contempt charge against Porter. Read the case.
But where does Porter say that he was detaining Merrick specifically on the order of President Lincoln?
Once again, Lincoln authorized Porter's actions - a similar and equally damning, yet distinct item from an order to the same effect. As fully documented in the case, Lincoln's fingerprints were all over the thing and prove conclusively that he employed the presidency to obstruct the judicial branch from carrying out its functions. Merrick's case is sufficient to demonstrate that Lamon's account of a plot to arrest Taney was not at all out of the ordinary for the Lincoln administration.
All nicely documented in the huge thread that #3fan trashed and caused to be pulled. Sigh.
Multiple sources of information.
"Lincoln had other plans though - he needed children like Murphy as cannon fodder in his battle lines so he wantonly impeded the judicial branch from carrying out this simple and common recourse action!"
Whoosh! That's the sound of your remaining credibility going right down the toilet. You're better than cheap shots like that. You sound like John Kerry now.
The Breckinridge candidacy was that of a splinter organization. Maybe the John Anderson 1980 analogy is more appropriate. My personal opinion is that Breckinridge's political calculus was that Douglas would do better in the North than he did, and the election would be thrown into the House, where the incumbent Vice President would hold the South and border states (15 out of 32 states then in the Union) and gather support in two others to win election.
The "status quo" would have been another doughface. It is pretty clear that the nation was changing - for the worse in the perspective of the slave-holding states - and the days of Southern dominance in the government were rapidly coming to an end.
Then provide the one that specifies your gratuitous slanders against Judge Merrick.
Whoosh! That's the sound of your remaining credibility going right down the toilet.
Don't be stupid, capitan. Everything I just said about Lincoln is absolutely true. The entire case was about him forcing an underage minor, Murphy, to stay in his army and his action in it consisted of (1) arresting Murphy's lawyer, (2) house arresting Judge Merrick, and (3) impeding the delivery of the contempt rule against his provost marshall for the house arrest of Merrick. His disregard for the judiciary and rule of law was outright reckless.
There is no document giving General Cadwalader purported authorization to suspend the privilege of the writ until after CJ Taney issued his decision.
Regarding the issuance of the writ, by law CJ Taney could not simply deny the writ. Also by law, General Cadwalader was required to make a return. General Cadwalader could not retroactively invoke a suspension of the privilege of the writ.
Currently codified under 28 USC 2243, the applicable part reads, "A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto."
Additionally, "The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.
The person to whom the writ or order is directed shall make a return certifying the true cause of the detention."
The reason for suspension of the privilege of the writ was clearly to jail political prisoners, upon any pretext, and be able to keep them unlawfully imprisoned.
Page 591 THE MARYLAND ARRESTS.
The old police when disbanded consisted of 416 persons. Twenty-seven are in our service. Several have been discharged. There are now about 350 left. The great part of them are obscure and inoffensive persons. Some of them are Union men. There are I am confient not over forty or fifty who would not take the oath of allegiance. There are some very mischivous, worthless fellows, but they are quiet. We only want a pretext for arresting them.
-- Major-General John A. Dix
Page 592 PRISONERS OF WAR, ETC.
GENERAL: Fort McHenry which has not sufficient space for the convenient accommodation of the number of men necessary to man its guns is crowded with prisoners. Beside our own criminals awaiting trial or under sentence we have eleven State prisoners. To this number six more will be added to-morrow.
-- Major General John A. Dix
Page 594 PRISONERS OF WAR, ETC.
You will please send under a sufficient guard all the political prisoners and prisoners of war now at Fort McHenry except those indicted but including Marshal Kane by an inland route to New York, preferably by the Chesapeake and Delaware Canal.
-- E. D. TOWNSEND, Assistant Adjutant-General.
Thirty political prisoners left Fort McHenry this day for Forts Columbus and Lafayette via the dealware and Chesapeake Canal and Camden and Amboy Railroad under a guard of eighteen enlisted men -- Major-General John A. Dix
Page 595 THE MARYLAND ARRESTS.
The arrest of W. Wilkins Glenn,* the proprietor of the Exchange, has given intense satisfaction. Beale Richardson and his writing editor Joice, of the Republican, are very violent and would grace the Tortugas. If the exchange should go on a Doctor Palmer and a William H. Carpenter are the ostensible editors, and both write with bitterness. They too would do well at Tortugas.
-- W. G. SNETHEN.
Page 597 THE MARYLAND ARRESTS.
SIR: The general-in-chief directs that you send by the first suitable conveyance to Fort Lafayetten, N. Y., the political prisoners mentioned in your letter to the Secretary of War of the 15th instant.
-- E. D. TOWNSEND, Assistant Adjutant-General.
SIR: The general-in-chief directs me to say that orders have been sent to Major-General Wool to transfer from Fort Monroe by the first suitable conveyance Honorable Henry May, Messrs. Winans, Brown and twelve other political prisoners arrested in Baltimore to Fort Lafayette.
-- E. D. TOWNSEND, Assistant Adjutant-General.
You keep insisting on that further, beside-the-point demonstration (precisely because direct documentary evidence, in Lincoln's own hand, is lacking), but you're just pettifogging the argument now.
Lincoln connived at Merrick's house arrest and General Porter's immpunity for ordering it. You insist on a further proof, any further proof, the want of which will allow you, you think, to say, aha, your proof is lacking, this is all unproven.
You're being dishonest now, and trying to throw sand in people's eyes. GOPcapitalist and TexConfederate1861 have a good argument supporting DiLorenzo -- never mind how much you dislike DiLorenzo and would eat broken glass to make him a liar -- but you are just being recalcitrant. Your slothful induction is obvious to any fair-minded person who reads this thread.
The original complaint was that Lincoln ordered the arrest of Taney by giving a warrant to Ward Lamon.
His knowing failure to relieve Judge Merrick is enough to support the "patterns and practices" corroboration for which Judge Merrick's incident was cited.
Whether you admit it or not.
No I'm just trying to weed my way through the bullshit. It gets deeper and deeper with every post. All I asked is some evidence that Lincoln personally ordered the detention of Judge Merrick, just like he is supposed to have ordered the detention of Chief Justice Taney. And all you guys can come up with is conjecture and connived actions, and you own wishful thinking. Any minute know I expect Nolu Chan to come in with his 'Lincoln was gay' erotic fantasies.
All you asked was to move the bar.
Come on, N-S, we all know what you're doing here.
You're trying to change the standard of proof. That's sand in the eyes.
The original statement and support are as DiLorenzo offered them, and as GOPcapitalist framed them above. The issuance of the warrant for Taney's arrest was eyewitnessed by Ward Lamon. The support for Lamon's statement that Lincoln would do such a thing, has been shown in Lincoln's direct involvement in the illegal detention of Judge Merrick under house arrest, to prevent Merrick's attendance on a case before him.
Your complaint is bogus. Your interlocutors are proceeding fairly to a fair conclusion. You just don't like it.
No, my interlocutors are jumping, leaping at conclusions. Just like their hero, Tommy DiLorenzo.
The Lincoln administration has a history of arresting those who could interfere with their plans. Supreme Court Justices, judges, legislators, federal congressmen, preachers who wouldn't pray for Lincoln, common citizens, etc.
In all the accusation no real substance. Looks a lot like the lefty's claiming Bush is a 'puppet of big oil' blah blah blah.
Then why do you contribute to the majority of its production?
And all you guys can come up with is conjecture and connived actions, and you own wishful thinking.
Exactly what is wishful about it? The fact that Lincoln personally authorized Porter and personally intervened to impede court sanctions against Porter over the house arrest of Merrick prove beyond any doubt that Lincoln obstructed justice by coercive means. Judge Dunlop determined no less in the panel's decision on the case:
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...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.
In June of 1861 shortly after the blockade had been established the seizure of several merchant vessels occured as part of the events that would eventually make up the Supreme Court's Prize Cases. One of the very first cases was over two siezed merchant ships, the Monticello and the Tropic Wind. It went before the D.C. Circuit Court. On June 24th the same Justice Dunlop who wrote that Lincoln's detention of Merrick was an unconstitutional outrage had this to say:
"It follows, upon the case as it now stands, there must be condemnation of both vessels and cargo."
Put simply, he ruled in favor of Lincoln on two of the very first war prize cases to come before a court. Some confederate sympathizer he must be!
You fail to recognize reasoning. Merrick was a southern judge. Pierce was a southern sympathizer. Pierce appointed Merrick to the bench in a southern circuit. Pierce appointed no southern judges who were not southern sympathizers. Therefore, Merrick was a southern sympathizer.
To get rid of Merrick, the pro-north Congress got rid of his entire circuit in 1863.
CR - "One of the major problems which faced Lincoln early in the War was an entrenched, sometimes disloyal, pro-southern judiciary."
Do you disagree with this statement?
Your reasoning is flawed. You have cited a single source claiming that Pierce appointed no judge who was objectionable to the southern members of Congress, NOT that he appointed only southern sympathizers. As to your claim of confederate sympathy on Merrick's behalf, it remains a gratuitous slander.
If you have something to support your contention by all means post it. But either put up or shut up.
Please post the relevant portions of debate from the Congressional Globe that demonstrate Congress was specifically trying to get rid of Merrick when it reorganized the DC court system. Otherwise this claim is also unsubstantiated. Time to put up or shut up.
Another colossal leap to a conclusion. In your universe Lincoln personally ordered every arrest because he ordered the suspension of habeas corpus. That is the only way that the Merrick case could remotely resemble the allegations on the Taney case.
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