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).

As has already been explained to you through extensive quotation from the case and in great detail, it was necessary to determine where the court got its authority to issue writs, if that authority was constitutional, and if that authority was presently in place for the case. The answer to all these questions derives from the Habeas Corpus clause in Article I, which the court found to apply to congress.

And as a simple read of the decision will show, the court got it's authority from the 14th Section of the judicial act, the act was constitutional, and the matter of who may suspend the writ was not a question because nobody had suspended it. The support for that lies with Article III, not Article I.

Jaffa contends that where the suspension clause is located is not nearly as important as why it is in the document at all.

And Jaffa, as usual, is full of it. Not only does he neglect the FUNDAMENTAL importance of its placement, to wit a compliance with the English tradition articulated by Blackstone in order that there may be a check upon the power of the executive by the legislature, but he also gets the purpose of it being there BACKWARDS. Any strict constructionist reading (which IMVHO is the ONLY intellectually valid way to read that document) of the constitution necessarily interprets its clauses in the way that is most conducive to liberty, thus we find, in full keeping with the intent of the founders, that the habeas corpus clause was placed there to PROTECT the sanctity of the Great Writ in all but the most extreme circumstances - NOT as Jaffa claims to provide a convenient means for the executive to come along and rape it. Justice O'Connor was absolutely correct in Hamdi when she stated that a disregard of the writ by the executive would serve to turn the entire system of checks and balances on its head, and Scalia was absolutely correct when he took this notion to an even further absolute, invoking it as an injunction against the court itself as well as the legislature.

The suspension power is given in the constitution to Congress for the very purpose of controlling abuse of it. The rationale, in its purest form, rests upon the notion that if a call to suspend the writ cannot even meet the test of obtaining congressional approval then that call itself is of suspect merit. For Harry Jaffa to assert otherwise is thus nothing short of an embrace of despotism, which seems to be what Jaffa is all about these days.

All of which confirms what Lincoln himself said, that his highest aim was to preserve the Union.

And it may be so, or maybe, as Tocqueville predicted, "preserving the Union" was just his borrowed name for invoking something more nefarious in the doctrines of material acquisition and coercion. But LG's original point stands - that amendment proves beyond a shadow of a doubt that Lincoln was NOT preeminently occupied with emancipation as is commonly thought and said of him.

Marshall's ruling right down to the holding itself at the end of the case (e.g. that pesky "therefore") says otherwise:

"t may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus."

"That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted."

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Of course you dropped the sentence before that, which spoke of the importance of context. How else could you think that this passage means what you says it means? The Chief Justice is pointing out that the Founding Fathers placed such a value on the writ that it could be suspended only in the most dire circumstances, and that the power to issue the writ was given to all courts. Not by Article I but by the judiciary act. And the Chief Justice ruled that the court had jurisdiction in this case. Not because of Article I, but because of Article III.

ping to 2102.

Note that Jaffa's argument is a textbook example of what happens when one attempts to devise a legal argument on the basis of justifying an action of a particular person that has been called legally suspect. The opposite and correct approach is to take the law as it stands and apply it to the facts of the legally suspect person or case.

Jaffa's approach is not only dangerous for the reasons stated but also virtually identical to the pattern employed by loose constructionist left wing judges across the nation today. It is their primary means of rendering judgment in the very worst form. Liberal judges with left wing agendas see a case out there - take the florida supremes in the 2000 recount for example - and ask themselves "okay, how can we make the law work so that our desired end is supported by the ruling?" In other words, "how can we make it work so that Al Gore gets the recount he wants?" Or "how can we make it work so that Bob Toricelli gets dropped and Frank Lautenberg gets added to the ballot he wants?" Or "how can we make it work that the pledge of allegiance gets struck down, that the ten commandments monument gets removed, or that Ralph Nader gets kicked off the ballot?" To loose constructionists it is ALL one giant semantical game of USING the law to justify their agenda and their desired outcome.

And so it also happens to be with Harry Jaffa on the issue of Habeas Corpus - Lincoln did something that is legally suspect, Lincoln needs to be defended from his detractors, so we'll use the semantical devices of law to produce an argument that justifies what Lincoln wanted! Bend a few words around, invent phony interpretations of previously settled common meanings, and intentionally ignore all remaining material evidence and salient points that otherwise cast doubt upon Lincoln's action and, shazaam, you got yourself a justification.

"Originally Nelson's opinion was to be the "court" opinion, but upon a motion by Justice Wayne the justices re-voted to accept Taney's version as that of the court (see Fehrenbacher p. 166)."

You evidently don't mean page 166 of The Dred Scott Case, which discusses the Missouri Compromise. Faker.

Furthermore, you have there entire process wrong wrong wrong. As Fehrenbacher notes, pg 308-309:

"The ink was scarcely dry on Nelson's draft, hoever, before the Court majority reversed itself and decided to take hold of the thornier problems that he had so caefully avoided. On the motion by Wayne, it was agreed that Taney should write the opinion of the Court, covering all of the questions arising in the case. This change occured after February 14 but apparently no later than February 19; for on the latter date, Catron wrote again to [President-elect] Buchanan, indicating that the Court would render a decision on the constitutionality of the Missouri compromise restriction."

Two points can be made here. (1) Taney had not written the decision as of the time of Wayne's motion (although he may have drafted a concurring opinion prior to that time), and (2) that left Taney with less than three weeks to finish his oral presentation of March 6.

Of course you dropped the sentence before that, which spoke of the importance of context

The sentence before ("This criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context.") referred to a semantical dispute over the language of the Judicial Act of 1789, non-seq. It imposes no contextual alteration upon the next part of the case as found in the passage I quoted.

Of course we all know what really happened here. You saw the word "context" used in a sentence and in your glee upon that little "discovery," you hastily threw together a bogus argument suggesting that it referred to the passage I quoted.

Does the "suspension clause," itself, require a legislative act? No.

On the contrary. If it is the case, as Bollman decided, that the authority to issue the writ comes from a statute of congress, it also must necessarily be true that a countervailing statute of congress would be necessary to suspend that authority. Or do you know of another way to change the statutory law besides another law or a court case striking it down as unconstitutional?

The flaw with the citation of Blackstone and British tradition is in the nature of the Parliament. The British Parliament, not unlike the Congress of the Confederation, was not a purely legislative body. It had executive functions, as some members participated with the Prime Minister as the Cabinet.

That tradition is not completely analogous to the Legislative and Executive branches of the Constitutional Government. Although it may have been popularly "assumed" that the right of suspension lay with the Congress, at the time of the ACW there was no authoritative decision that such was the case.

Lincoln was NOT preeminently occupied with emancipation as is commonly thought and said of him.

Has anyone of the Unionist cabal here ever said such a thing? Otherwise it's a strawman. The quote I cited is not an obscure one. The fact remains, however, that Lincoln abhorred slavery and that, given the opportunity, he did play a leading role in its demise.

Lincoln was NOT preeminently occupied with emancipation as is commonly thought and said of him.

"Note that Jaffa's argument is a textbook example of what happens when one attempts to devise a legal argument on the basis of justifying an action of a particular person that has been called legally suspect."

Jaffa did not make a legal argument. It is an historical and philosophical argument, based on the the rationale for why the Constitution exists at all.

"And so it also happens to be with Harry Jaffa on the issue of Habeas Corpus - Lincoln did something that is legally suspect, Lincoln needs to be defended from his detractors, so we'll use the semantical devices of law to produce an argument that justifies what Lincoln wanted!"

Lincoln had all the justification he needed from the Constitution, and it was reinforced by the Act of Congress.

Lincoln's purely political endorsement of the "Corwin Amendment" was an opportunity to buy time and, hopefully, hold the slave-states that had not yet purported to secede. The rationale was that the radical states of the deep south would, in time, realize that they were impotent without their neighbors and rejoin the fold.

As it was, events in South Carolina overtook efforts to reach a political solution. The "Corwin Amendment" withered on the vine and the confederacy entered into its slow, agonizing death throes soon thereafter.

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