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).

[N-S] Any minute know I expect Nolu Chan to come in with his 'Lincoln was gay' erotic fantasies.

David Herbert Donald, the author of the Lincoln Prize-winning, best-selling biography, Lincoln (1995), found during his book tour the question, "was Lincoln gay," the most commonly asked. I myself have been queried about his sexual orientation, from as far away as ABC of Australia. In fact it is possible to find evidence that to twenty-first-century readers might suggest homoerotic behavior. Historian Robert H. Wiebe has argued that Lincoln found security in a male dominated political world, that he harbored a deep emotional attach-ment to male fraternity. He was a "man's man." Of course male bonding is not the same as homosexuality. As a young man Lincoln had shared for years the bed of his closest friend, Speed, and later riding the circuit as a lawyer he shared the beds of countless others -- as did most everyone else. Anyone familiar with the ways of poor societies would find nothing unusual about such practices.

But Lincoln's male bonding went beyond what circumstances dictated. If we believe a Union officer's recollections about the scuttlebutt that went around in the company that guarded the president at Washington's Soldiers' Home, the summer White House where he spent a large portion of his time, we have this:

Captain [David V.] Derickson, in particular, advanced so far in the President's confidence and esteem that, in Mrs. Lincoln's absence, he frequently spent the night at his cottage, sleeping in the same bed with him, and-it is said-making use of His excellency's night-shirts! Thus began an intimacy which continued unbroken until the following spring.. . .

In November 1862, Lincoln wrote that "Captain Derrickson [sic]... and his Company are very agreeable to me; and while it is deemed proper for any guard to remain, none would be more satisfactory to me than Cpt. D and his company." So it was to be, the Company remained the presidential guard until the end of the war, but its Captain was appointed provost marshall in Pennsylvania the following spring.

Source: Gabor Boritt, The Lincoln Enigma, 2001, p. xv.

LINK

Washington Times
Lincoln finds summers of respite in rural area
By Edward Steers Jr.

"Lincoln's Sanctuary: Abraham Lincoln and the Soldiers' Home."
Oxford University Press
by Matthew Pinsker

---

Among the more interesting and little-known aspects of Lincoln's life at the home was his relationship with Capt. David Derickson. Described as "the president's favorite new companion," Derickson was captain of Company K of the 150th Pennsylvania Infantry. In September 1862, Companies K and D were detached from the defenses of Washington and sent to guard the president's cottage at the Soldiers' Home. According to Mr. Pinsker, Lincoln often shared his dinner table with Derickson and Capt. Henry Crotzer (of Company D) when Mary Lincoln was away.

In addition, Derickson shared a bed with the president, at Lincoln's invitation. The bed-sharing eventually made its way into the regimental history that received little attention until recently. Contemporary views thought little of men sleeping together in the same bed, a common practice of the period.

That an Army captain would share the bed of president of the United States on multiple occasions might seem unusual and hard for some to understand. Mr. Pinsker, however, describes the situation more fully than has been the case, and places it in is proper historical context. Even so, the story will undoubtedly gain prominence now.

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LINK

December 21, 2003
Lincoln's Sanctuary: Abraham Lincoln and the Soldiers' Home
by Matthew Pinsker

--------------------------------------------------------------------------------

BRIAN LAMB, HOST: Matthew Pinsker, author of "Lincoln`s Sanctuary: Abraham Lincoln and the Soldiers` Home,"

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LAMB: So, what`s the Captain Derickson story then?

PINSKER: Well, David Derickson was about 10 years younger than the president and he was the captain of this infantry company, company K of the 150th Pennsylvania. He was from Meadville (ph), he was a businessman, but he was a Republican politician. And he showed up with the company early September, 1862, and the president as a courtesy asked him to ride with him that second morning into the city. And they did.

And as they were riding into the city, they struck up a conversation, and Lincoln felt some sort of, you know, connection to him. They talked politics; they both came from relatively similar backgrounds. And over the next several weeks, he and Derickson became friends. It`s a remarkable story about their friendship. He took Derickson with him on a tour of the battlefield at Antietam, and then later in late October when Mary Lincoln took Tad and went traveling to New England, Lincoln, the president, was alone in the soldier`s home cottage, and according to the soldiers who were there, he invited Derickson to spend a night in the cottage, and according to the soldiers, Derickson slept in the bed with Lincoln at this cottage.

And you can I think from a modern perspective, you know, raise an eyebrow over that, thinking about sexuality. They raised eyebrows back then too, but they didn`t think sexuality at all. Their gossip was about how a president could dare to be such close friends with a captain. And they were -- there were literally gossipers in the city. There was a woman who writes in her diary that a captain was becoming close friends with the president and even riding with him and staying with him in the cottage, and she writes in her diary, what stuff.

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LINK

Lincoln, Abraham, 1809-1865.: Collected Works of Abraham Lincoln. Volume 5.

To Whom It May Concern [1]

Executive Mansion,
Whom it may concern Washington, Nov. 1, 1862

Capt. Derrickson, with his company, has been, for some time keeping guard at my residence, now at the Soldiers Retreat. He, and his Company are very agreeable to me; and while it is deemed proper for any guard to remain, none would be more satisfactory to me than Capt. D. and his company.

A. LINCOLN

Annotation

[1] ALS-P, ISLA, Captain David V. Derickson of Company K, One Hundred Fiftieth Pennsylvania Volunteers continued to act as presidential bodyguard until he was appointed provost marshal for the Nineteenth District of Pennsylvania on April 27, 1863. His company remained as presidential guard until mustered out in June, 1865.

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[N-S] Any minute know I expect Nolu Chan to come in with his 'Lincoln was gay' erotic fantasies.

While Lincoln biographer remarked that the question "Was Lincoln gay" was the question he was most commonly asked, perhaps you would prefer to dwell upon Lincoln's syphilis.

LINK

POX: Genius, Madness, and the Mysteries of Syphilis
ISBN 0-465-02881-0
By Deborah Hayden

Abraham Lincoln

Excerpt from Lincoln chapter:

According to Lincoln’s biographer, friend, and law partner for eighteen years, William Herndon, Lincoln told him that he had been infected with syphilis in Beardstown in 1835 or 1836. Herndon wrote to his co-author “Friend Weik” in January 1891, wishing that he had not put the confidence in writing:

When I was in Greencastle in 1887 I said to you that Lincoln had, when a mere boy, the syphilis, and now let me explain the matter in full, which I have never done before. About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this and in a moment of folly I made a note of it in my mind and afterwards I transferred it, as it were, to a little memorandum book which I loaned to Lamon, not, as I should have done, erasing that note. About the year 1836-37 Lincoln moved to Springfield and took up quarters with [Joshua] Speed; they became very intimate. At this time I suppose that the disease hung to him and, not wishing to trust our physicians, wrote a note to Doctor Drake, the latter part of which he would not let Speed see, not wishing Speed to know it. Speed said to me that Lincoln would not let him see a part of the note. Speed wrote to me a letter saying that he supposed L’s letter to Doctor Drake had reference to his, L’s crazy spell about the Ann Rutledge love affair, etc., and her death. You will find Speeds’ letter to me in our Life of Lincoln. The note to Doctor Drake in part had reference to his disease and not to his crazy spell as Speed supposes. The note spoken of in the memorandum book was a loose affair, and I never intended that the world should see or hear of it. I now wish and for years have wished that the note was blotted out or burned to ashes. I write this to you, fearing that at some future time the note-a loose thing as to date, place, and circumstances-will come to light and be misunderstood. Lincoln was a man of terribly strong passion, but was true as steel to his wife during his whole marriage life, as Judge Davis has said, saved many a woman, and it most emphatically true, as I know. I write this to you to explain the whole matter for the future if it should become necessary to do so. I deeply regret my part of the affair in every particular.

In a postscript, he adds that a Mrs. Dale saw the book and took note of its contents, and so he fears that the contents may come to light from that source.

Herndon tells us that Lincoln moved in with Speed in 1836-37 and, to repeat from the letter, “at this time I suppose that the disease hung to him [italics added] and, not wishing to trust our physicians, [he] wrote a note to Doctor Drake.” But there is an odd discrepancy in the Speed letter to Herndon published in the Life of Lincoln (completed in 1888-the year before the letter to Weik cited above) and dated 30 November 1866. Here Speed puts the date of the letter to Drake several years later:

Lincoln wrote a letter -- a long one which he read to me-to Dr. Drake of Cincinnati, descriptive of his case. Its date would be in December 1840, or early in January 1841. I think that he must have informed Dr. Drake of his early love Miss Rutledge, as there was a part of the letter which he would not read . . . I remember Dr. Drake’s reply, which was, that he would not undertake to prescribe for him without a personal interview. Here Speed tells Herndon that Lincoln would not let him read part of the letter and guesses that he must have informed Drake of his early love for Ann Rutledge. He remembers Dr. Drake’s reply, that he could not prescribe medication without a personal interview.

The first reference to a contact with Dr. Drake in 1836-37 would have been within one or two years of the initial infection in Beardstown, thus in the highly infectious stage. The second reference, December 1840-January 1841, would have been four to five years after Beardstown, or well into the middle stage of disease. Hirschhorn, Feldman, and Greaves assign the Drake contact to the later date.

LINK

Mary Todd Lincoln

Excerpt from Lincoln chapter:

Syphilis was suggested in Mary Todd’s medical history when Norbert Hirschhorn and Robert Feldman published an article in 1999 reviewing the work of the four doctors who had diagnosed her progressive spinal trouble. Finding a clear case of tabes dorsalis, Hirschhorn and Feldman argue convincingly that the doctors would have known very well by then that tabes was caused by syphilis in the majority of cases and would have opted to save her reputation (and to assure a benefit that might have been withheld by a censorious Congress) by stating that her tabes dorsalis was caused by an injury to her spine when she fell from the French chair. “Given the widespread medical knowledge about tabes dorsalis at the close of 1881 and what then was considered its most likely cause [syphilis], it was inevitable that the four physicians chose the least pejorative diagnosis, however marginally acceptable it was to progressive medical opinion.” Jonathan Hutchinson concluded that it was generally accepted that tabes occurs “almost solely” in those who have previously suffered from syphilis. P.J. Möbius went one step further: “The longer I reflect upon it, the more firmly I believe that tabes never originates without syphilis.”

The tabes diagnosis gives a fresh interpretation to the reasons for Mary Todd’s incarceration: “Symptoms imputed to insanity at her trial clearly had their origin in the organic disease of tabes dorsalis.” The authors point out that the lightning pains of tabes were often described with vivid images appropriate to such extreme agony, such as having wires taken out of the eyes or, as Mary also complained, of being hacked to pieces by knives, or of having a sharp, burning agony in the back, or feeling as if one were on fire.

LINK

Deborah Hayden
February 21, 2004February 21, 2004 Abraham Lincoln & Syphilis--idea for an article The source that Abraham Lincoln had been infected with syphilis is none other than Lincoln himself, according to his biographer, friend, and law partner, William Herndon. In a letter to his co-author, Herndon wrote: "When I was in Greencastle in 1887, I said to you that Lincoln had, when a mere boy, the syphilis, and now let me explain the matter in full, which I have never done before. About the year 1835-36, Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this and in a moment of folly I made note of it in my mind and afterwards I transferred it, as it were, to a little memorandum book which I loaned to Lamon, not, as I should have done, erasing that note. About the year 1836-37 Lincoln moved to Springfield and took up quarter with [Joshua] Speed; they became very intimate. At this time I suppose that the disease hung to him, and not wanting to trust our physicians, wrote a note to Doctor Drake."

In my chapter on Lincoln, I made the point that there is quite a bit of circumstantial evidence that Lincoln did have syphilis, and that he was probably taking the "little blue mercury pills" not for melancholia as has been suggested, but for on-going syphilis.

What is remarkable about this whole story is how it has been almost completely ignored in the vast Lincoln scholarship. The question of whether or not Lincoln had syphilis, and how good the clinical evidence of that is, demands further research. But there is a more interesting question. What if Lincoln believed that he had syphilis? And why have there been so many biographies of Lincoln that don't even mention Herndon's letter, let alone ponder the implications?

Gore Vidal is about the only one who brought the whole thing into the open, when he said on the Larry King television program, that both Abraham and Mary Lincoln were infected with syphilis. But he didn't do his homework to pull together a convincing story -- and he didn't have Norbert Hirschhorn's two articles -- the one showing that the "blue mass" that Lincoln took was mercury, or the one showing that Mary Todd's four doctors in 1882 almost assuredly believed that she was suffering from tertiary syphilis in the form of tabes dorsalis. (I make the point in my chapter that Mary Todd's mental imbalance points toward a diagnosis of taboparesis-- that is, both tabes and paresis, but that is another story.

Douglas L. Wilson (co-director of the Lincoln Studies Center at Knox College, in Galesburg, Illinois) mentions the Herndon-Greencastle passage in an article in the Atlantic, but he leaves it without comment, although he does deal with it in a bit more detail in Honor's Voice, his 1998 biography of Lincoln.

So -- this question is posed to the Lincoln scholars: what difference does it make to our view of Lincoln and his place in history if he was, as he said to Herndon, another secret syphilitic?

I'm tempted to write to a handful of Lincoln scholars and ask them this question.

LINK

Gore Vidal

Devotees of the Mount Rushmore school of history like to think that the truely great man is a virgin until his wedding night; and a devoted monogamist thereafter. Apparently, Lincoln was indeed "true as steel" to Mary Todd even though, according to Herndon, "I have seen women make advances and I have seen Lincoln reject or refuse them. Lincoln had terrible strong passions for women, could scarcely keep his hands off them, and yet he had honor and strong will, and these enabled him to put out the fires of his terrible passion." But in his youth he was seriously burned by those fires. In the pre-penicillin era syphilis was epidemic - and, usually, incurable. According to Herndon: "About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this . . " Later, after a long seige, Lincoln was cured, if he was cured, by a Dr. Daniel Drake of Cincinnati.

Herndon suspected that Lincoln might have given Mary Todd syphilis. If he had, that would have explained the premature deaths of three Lincoln children: "Poor boys, they are dead now and gone! I should like to know one thing that this is: What caused the death of these children? I have an opinion which I shall never state to anyone." So stated to everyone Herndon. The autopsy on Mary Todd showed a physical deterioration of the brain consistent with paresis. If Lincoln had given his wife syphilis and if he had, inadvertently, caused the death of his children, the fits of melancholy are now understandable - and unbearably tragic.

LINK

Gore Vidal

As for Lincoln's syphilis, I use the words Herndon himself used: "About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease [syphilis]. Lincoln told me this . . . About the year 1836-37 Lincoln moved to Springfield . . At this time I suppose that the disease hung to him and, not wishing to trust our physicians, he wrote to Doctor Drake." Since there is no reason for Herndon to lie about this, I suppose we should all agree upon it as a fact. But since no saint has ever had syphilis, Herndon is a liar and so the consensus finds against him.

[N-S] You are confused. There is no documentation concerning the purported "arrest warrant" for Taney.

However, April 27, 1861, President Lincoln, as an emergency measure in the face of armed insurrection and the absence of Congress, lawfully suspended (the privilege of the) writ of habeas corpus by proclamation directed to Lt. General Scott.

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No, you are confused. The letter of April 27, 1861 granted "authorization" to suspend upon meeting resistance, but Lincoln did not suspend anything. By letter of May 28, 1861, the day after Taney issued his ruling as an in-chambers opinion of the Chief Justice of the U.S. Supreme Court, Cadwalader was told by Assistant Adjutant General Townsend that he was authorized to suspend the writ.

As the official record documents demonstrate, General Keim directed Colonel Yohe to effect the arrest and Colonel Yohe directed Captain Heckman to make the arrest. General Keim was in Pennsylvania and could not be authorized to suspend habeas corpus in Maryland.

As CJ Taney accurately described it, "As the case comes before me therefore I understand that the President not only claims the right to suspend the writ of habeas corpus himself at his discretion but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him."

http://www.ehistory.com/uscw/library/or/107/0337.cfm

Page 337 Chapter LXIII. CORRESPONDENCE, ETC. - UNION.

HEADQUARTERS OF THE ARMY,
Washington, April 27, 1861.

The undersigned, General-in-Chief, of the Army, has received from the President of the United States the following communication:

COMMANDING GENERAL ARMY OF THE UNITED STATES:

You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia, via Perryville, Annapolis City, and Annapolis Junction, you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally, or through the officer in command at the point where resistance occurs, are authorized to suspend that writ.

ABRAHAM LINCOLN.

In accordance with the foregoing warrant, the undersigned devolves on Major-General Patterson, commanding the Department of Pennsylvania, Delaware, and Maryland; Brigadier-General Butler, commanding the Department of Annapolis, and Colonel Mansfield, commanding the Washington Department, a like authority, each within the limits of his command to execute in all proper cases the instructions of the President.

WINFIELD SCOTT.

HEADQUARTERS OF THE ARMY,
Washington, May 28, 1861.

Bvt. Major General G. CADWALADER, U. S. Army,

Commanding Department of Annapolis, Baltimore, Md.

GENERAL: Your letter of the 27th instant with inclosures reporting the arrest of John Merryman and the issue by Chief Justice Taney of a writ of habeas corpus in his case has been received.

The general-in-chief directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement all persons implicated in treasonable practices unless you should become satisfied that the arrest in any particular case was made without sufficient evidence of guilt.

In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question.

I am, sir, very respectfully, your obedient servant,

E. D. TOWNSEND,

Assistant Adjutant-General.

It is absolutely true that CJ Taney could not just deny the writ. CJ Taney most certainly had jurisdiction, as such jurisdiction is affirmatively granted to Supreme Court justices, among others. He cannot recuse himself without sufficient cause, and there was no sufficient cause.

The purpose of the suspension was irrelevant. The military officers declaring the suspension could not be lawfully delegated such authority. The action was unlawful.

Even Mario Cuomo has a handle on this one.

The writ of habeas corpus is one of the fundamental constitutional guarantees of personal liberty, assuring a person detained by the government an opporutnity to challenge the detention before a court or judge. There is no question that Lincoln took it upon himself to authorize suspending the writ in contradiction of the Constitution as interpreted by the Supreme Court. He also suppressed two established newspapers, provided unappropriated funds for the purchase of military equipment, allowed a military tribunal to convict Maryland civilian John Merryman without bringing specific charges (to the horror of the still-reigning, eighty-five-year-old Chief Justice Roger B. Taney), and even signed the first income tax act, all in apparent violation of the law.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 76-7.

Notwithstanding, however, Lincoln's clever attempts at exculpation, or at least mitigation, and his advocates' pleas for understanding the dire circumstances he faced, I still wish that the great Lincoln had stood by the Constitution despite the strong temptatin not to. Our government has ample authority under the Constitution to take those steps that are genuinely necessary for our security. At the same time, our system demands that government act only on the basis of measures that have been the subject of open and thoughtful debate in Congress and among the American people and that invasions of the liberty or equal dignity of any individual are subject to review by courts that are open to those affected and independent of the government that is curtailing freedom.
Lincoln's willingness to put himself above the law was particularly unfortunate because of the strong pledge to constitutional fidelity he had made and affirmed in his earlier days. In his Lyceum speech of 1838 he went so far as to say that compliance with the letter and the spirit of the law should be treated as the "political religion" of the nation.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 85.

CUOMO on Lincoln and Free Speech

Lincoln had a way of personalizing even the most abstract arguments, a talent that made his explanations both palatable and unforgettable. Defending his broad use of executive authority to the Albany opposition in 1863, he selected a vivid example, asking:

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley [sic] agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government too weak to arrest and punish him if he shall desert, I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy. [53]

Of course what Lincoln was saying, as touching as it sounds, might be translated into something like this: If the government thinks a war is a good idea but a citizen thinks it is an abomination and a fraud, he is not free to say so because he might convince someone.

[53] Collected Works, 6:266-67.

Source: Mario Cuomo, Why Lincoln Matters, 2004, p. 82

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