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
"Factual" information, unsubstantiated, amounts to nothing more than personal opinion. You obviously have the educational background to make a reasoned, referenced, and substantiated argument. So why not take that course, rather than hurl invective-laden broadsides? It simply cheapens the discussion. (I know, as I fall into that trap as much as anyone on these threads.)
I believe your timetable is incorrect. Twiggs had been advised that he had been replaced as commander (i.e., his request to resign had been granted) before Texas troops took him prisoner. He was still in command because his replacement was about 60 miles away.
Take a look at the following eye-witness account from the Southwestern Historical Quarterly. Twigg's capture
Texas forces under Ben McCulloch started surrounding the Federal institutions in San Antonio starting as early as 4 AM on the day of Twigg's capture and the surrender of Federal equipment and installations.
The Memphis Daily Appeal of February 28, 1861, had a reported written while the negotiations with the captured Twiggs were underway. It pointed out that Federal troops were still holding out, despite being surrounded by a much larger force:
At present, three o'clock P.M., two companies of infantry are still besieged, one in the commissary, about 125 men, and the other in the arsenal and their unconditional surrender demanded.
In other things I've read, the words got quite heated between Twiggs and the Texas commissioners negotiating the turn over. Twiggs eventually prevailed enough that his troops were allowed to take their horses and arms and provisions to the coast. The various federal forts were to be surrendered to Texas troops. In fact, some of the forts had already been surrendered by local Federal commanders who did not believe the Federal government would wish bloodshed over a constitutional issue.
San Antonio was not like Fort Sumter, where Federal troops were in a somewhat defensible place and rescue by sea was potentially possible. They were hundreds of miles from succor and greatly outnumbered. General Twiggs could have done a Davy Crockett and perished in heroism, but instead he spared the lives of his troops and negotiated their path back to the United States. Texas later reneged on the bargain and took the Federal troops prisoner, as I remember.
Twiggs did not have the authority to transfer federal facilities to state hands. Only Congress can.
Yep, sounds like Twiggs put up a real fight.
I don't believe I've ever asserted otherwise - only that Twigg's action was supported by Houston, who is often incorrectly portrayed as some great defender of the union. It's also amusing how you become a stickler for the rules of congressional procedure when the person exerting a power of Congress is somebody other than Saint Abe.
You wrote:
If there is a problem in dating the case from 1818, you can blame Carl Swisher, Taney's most literate biographer. The footnote for that citation reads: "FN19 ... On Taney's manumissions and defense of the abolitionist minister, see Swisher, [Roger B.] Taney, 94-98; Lewis, Without Fear or Favor, 44, 76-79."So again, your contention is that Fehrenbacher did not research the case, that he simply used the research of others, without any attempt at validating the information?
Bwahahahaha! It's not the justices opinion until they are thru with it, and the final copy is published. Justices routinely revise and direct comments regarding differing opinions on a case. That is how their opinion can cite from the other opinions for the same case.
Currently an opinion may be revised and presented at least three times before the "final" printing. A "bench opinion", a "slip opinion", "preliminary prints", and the final US Reports version.
like today's DIMocRATS, the anti-slavery societies were LONG on MOUTH & short on action.<P.free dixie,sw
that is UTTER HOGWASH.
we could have held the Ozarks & most of the rest of the TMW with 10,000 troops forver. even US Grant admitted that.
free dixie,sw
and they sold them to the slavers from the north.
free dixie,sw
though neither was by any means a traitor. FRANKLY, i'm surprised (considering the TENS of THOUSANDS of other atrocities that the bluebelly horde did commit) that they didn't decide to hang every Confederate.
damnyankee are nothing if not hateful/vengeful.
free dixie,sw
that makes him DANGEROUS to LIBERTY.
free dixie,sw
that's why.
free dixie,sw
So why was the south so afraid of them, citing them over and over as a threat in the secession documents? You can't argue both that they were small and ineffectual and that the south saw them as enough of a threat that they cited them as a reason for secession.
Because of their terrorist offshoots, specifically John Brown and the Wide Awake clubs.
for the 90+% of NON-slaveowners, they generally neither knew nor cared what the societies said/thought/did.
as i've said numerous times, the slaveOWNERS were a SMALL, rich minority in the south AND they frequently collaborated with the enemy, thus i'm no fan of the plantation aristocracy.
free dixie,sw
nice comment.
free dixie,sw
Mr Shepard was a "free person of colour", who was serving as a sworn VA State Police Officer, at the time of his untimely death.
free dixie,sw.
free dixie,sw
On the other hand he could have been better prepared than he was and put his troops on alert and in better defensive positions. The San Antonio newspaper a day or two before the Texas troops arrived warned that thousands of Texas troops were coming. It turned out to be only 800, but they far outnumbered the 160 Federal troops in town.
Twiggs could have refused to surrender Federal facilities in Texas. In he had done that, the facilities would be taken by force anyway with heavy casualties in his troops. He was in a hopeless position.
I don't think Robert E. Lee thought very highly of Twiggs action.
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