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).

From that same speech by Lincoln: 'How like the half insane mumbling of a fever-dream, is the whole war part of his late message!'

The best line of course was this one, 'Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,-- most sacred right--a right, which we hope and believe, is to liberate the world.' Decades later, such was only a fever-dream to Lincoln.

Was this some indication of his position? 'I suppose no one will say we should kill the people, or drive them out, or make slaves of them, or even confiscate their property.' Is that what he wanted? Starkmconstrast to his utterances of equality.

Lincoln also questioned the cost of the war, and the resulting profits, 'How then can we make much out of this part of the teritory? [sic] If the prossecution [sic] of the war has, in expenses, already equalled the better half of the country, how long it's future prosecution, will be in equalling, the less valuable half, is not a speculative, but a practical question, pressing closely upon us.' Always the Whig. Follow the money.

Lincoln then takes a shot at Gen. Scott, 'At it's beginning, Genl. Scott was, by this same President, driven into disfavor, if not disgrace, for intimating that peace could not be conquered in less than three or four months.' Guess what? Scott was right. Decades later, Lincoln asked his opinion and rejected it. Lincoln flip-floped like John F'n Kerry.

"So why should the Republican Party of Texas celebrate a man who never did any good for our state, never ruled our state, and was despised by our state's heroes and founders such as Sam Houston?"

Sorry for the delay on the last part of this reply. I had to dig up an old book by Aurora Hunt, entitled The Army of the Pacific: 1860-1866, published in 1951, but recently reprinted.

Your contention that Lincoln "never ruled our state" is correct insofar as you mean the whole state. There were parts of Texas that were re-occupied by Union forces for most of the ACW. Hunt writes:

"The column from California is coming!" That was discouraging news for the retreating Texans, but welsome, indeed, to the commander of the Department of New Mexico, General Edward E. S. Canby, and his small force of Federal troops and Colorado and New mexico volunteers.

General Carleton's Californians were on their way, yet there were still many miles of rough marching between the Rio Grande and Tuscon where troops were then concentrating. Carefully Carleton planned theis last lap of his journey across the unsettled territory."

More information can be found in the War of the Rebellion, Offical Records. Here are some excepts regarding the retaking of the forts and posts along the Rio Grande in the Summer and Fall of 1862. The Confederate troops were forces all the way back to San Antonio.

[Inclosure I.] HEADQUARTERS DISTRICT OF ARIZONA, Las Cruses, N. Mex., August 15, 1865.
Brigadier General E. R. S. CANBY,
Commanding Department of New Mexico, Santa Fe, N. Mex.:

GENERAL: I wrote to you a letter from Ojo de la Vaca on the 2nd instant advising you of the strength of the forces under my command then en route to the Rio Grandle. Since then I have not received any letters from your headquarters advising me of the receipt of that communication. The inclosed general orders (Nos. 14 and 15, from these headquarters) will give you an idea of the force stationed at Mesilla. In Las Cruses there are four companies of the Fifth U. S. Infantry; at Fort Fillmore there are Shinn's light battery, Third U. S. Artillery; Companies A and E, First California Volunteer Infantry; Company B, Fifth California Volunteer Infantry, and Companies B and D, First California Volunteer Cavalry, and Company B, Second California Volunteer Cavalry. I places all the cavalry and nearly all the quartermaster's wagons and teams at Fort Fillmore on account of the good grazing in that vicinity and the abundance of mesquite beans now in tat neighborhood, which for the present precludes the necessity of purchasing much forage. As there are sufficient quarters at La Mesilla for the four companies of the Fifth U. S. Infantry I shall establish them in that town, unless otherwise directed by yourself, at least for the present. The emulation which will naturally spring up between them and the volunteers, as to who shall best perform their duties, will, in my opinion, be of great service to both; besides, there is a fine building there, where the supplies - quartermaster's and subsistence - can be kept free of expense, and the town of Mesilla is said to be a cooler and healthier locality than Las Cruses. Colonel Howe wrote to me desiring that I would send these four companies to Fort Craig, but this I do not feel authorized to do unless your order it. Mr. Woods the beef contractor, wrote me a note in relationto furnishing beef for my command. It is herewith inclosed,* together with my reply. I hope my desicion in this case will meet with your approval. I have not yet learned officially whether Mr. Woods will or not supply beef for only the four companies of regulars; I have heard that he would not. To-morrow I leave for Fort Bliss, in Texas, with Companies B, of the First, and B, of the Second, California Volunteer Cavalry. Company C, First California Volunteer Cavalry, is already at Hart's Mill, as you had doubtless heard previous to my arrival. There are many matters of moment which required my attention, as I have heard, in the neighorhood of Fort Bliss.

I am, general, very respectfully, your obedient servant,
JAMES H. CARLETON,
Brigadier-General, Commanding.
O.R. Ser I, Vol. L, pt. 1, pg 110-111

[Inclosure K.] GENERAL ORDERS,
HDQRS. COLUMN FROM CALIFORNIA, CAMP ON RIO GRANDE, Numbers 16.
Near Fort Quitman, Tex., August 22, 1865.

I. At 12 m. to-day Captain John C. Cremony, with his company (B, of the Second California Volunteer Cavalry), will proceed to Fort Quitman and hoist over it the national colors the old Stars and Stripes. By this act still another post comes under its rightful flag and once more becomes consecrated to the United States.

II. Captain Edmond D. Shirland, First California Volunteer Cavalry, will proceed without delay, yet by easy marches, to Fort Davis, Tex., and hoist over that post the national colors. If Captain Shirland finds any sick or wounded soldiers there he will make them prisoners of war, but put them upon their parole and let them proceed without delay to Texas. If they are unable to travel, captain Shirland will report to these headquarters by express what they need in the way of surgical or medical attention; what they need in the way of food or transportation, and all other essential facts connected with them which it may be necessary to have known to have them properly cared for. If the fort is abandoned, Captain Shirland will retrace his steps and report in person to these headquarters.

III. Twenty effective men will be ordered from Company B, First California Volunteer Cavalry toreport to Captain Shirland for detached service to Fort Davis, Tex.

By order of Brigadier-General Carleton;
BEN. C. CUTLER,
O.R. Ser I, Vol. L, pt. 1, pg 111

[Inclosure N.] HEADQUARTERS DEPARTMENT OF NEW MEXICO, Santa Fe., N. Mex., August 21, 1862.
Brigadier General JAMES H. CARLETON,
Commanding District of Arizona, Fort Bliss, Tex.:

GENERAL: The commanding general desires that you will arrange the affairs of your district so that the command may be turned over to the officer next in rank as soon as practicable, and hold yourself in readiness to repair to the headquarters of the department.

Very respectfully, your obedient servant,
GURDEN CHAPIN
O.R. Ser. I, Vol. L, pt. 1, pg. 113-114

[Inclosure Q.] HEADQUARTERS DISTRICT OF ARIZONA, Franklin (El Paso), Tex., September 1, 1862.
COMMANDER OF CONFEDERATE TROOPS, SAN ANTONIO, TEX.:

SIR: I found on my arrival here some twenty-odd such and wounded soldiers of the C. S. Army, whom I was ordered by General Canby, commanding the Department of New Mexico, to make prisoners of war. These men, at their earnest solicitation, I sent to San Antonio on their parole. They have been furnished with rations of subsistence for forty days and with such medicines and hospital stores as were necessary for them on the road. I have also furnished two wagons for the transportation of those who are unable to walk, and I have sent an escort of one lieutenant and twenty-five rank and file of the First California Volunteer Cavalry to guard them from attack by Mexicans or Indians until a sufficient force from your army is met, to whom they may be transferred, or until they reach some point near San Antonio, where from thence onward they can travel with safety. From that point the lieutenant is ordered to return with his party and all the means of transportation belonging to the United States with which he instructed for the use of his escort and benefit of these prisoners.

I have the honor to be, very respectfully, your obedient servant,
JAMES H. CARLETON,
Brigadier-General, U. S. Army, Commanding.
O.R. Ser. I, Vol. L, pt. 1, pg. 114

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