Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

Lew Rockwell.com ^ | August 19, 2004 | Thomas J. DiLorenzo

[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

[Gianni]

Every argument that comes from that side of threads like this one is built around justifying and excusing the acts of Lincoln at all costs to maintain the farcical state of perfection they have placed him in.

The arguments are metaphysical in nature, with a secret persuasive potency detectable only by their normative aura. Largely, they can be described as being akin to medieval concerning the nature of the Trinity.

[4CJ]

Nipple ring?

[4CJ]

The mechanism of the purported secession was contrary to the Union that was created at the time of the Declaration, made perpetual by the approval of the Articles of Confederation & Perpetual Union, and sanctified by the people in their voluntary binding act of ratification of the Constitution.

WHERE does it state that a state cannot leave?????

Your reference to the 10th Amendment underscores the shallowness of your "constitutional" argument.

Bwahahahahaha! I have a statement that reserves the power to the states. You don't have ANY statement that prohibits secession.

The states do not have the power to decide which portions of the Constitution or the laws made under it, they will obey.

What law prevents their leaving?

Unilateral secession is a denial of the binding nature of the Constitution and is the antithesis of government.

WHERE does it state that a state cannot leave????? The states aceded unilaterally, NOTHING prevents them from leaving. If the state chooses self-government, and no longer desires to serve as a chained slave to a despotic union, it's their choice. The sovereigns of the state decide. Or are you against the principles espoused by the Declaration?

Four pre-ACW Presidents are on record as having directly denied the constitutionality of unilateral secession.

The presidents are not signatories or parties to the Constitution.

Nor is there any contemporary account (c. 1790+/-) in which those who formed the 1st Congress interpreted any provision of the Constitution or its subsequent Amendments as providing for the demise of the Union or the autonomy of the States.

During debates Madison supported federal control of the militia to prevent secession, which was rejected. Gouvernor Morris' motion to submit ratification to the people en masse couldn't even get a second. The founders explictly rejected a consolidation of the states. Think about it.

Despite your assertions, John Marshall in the Virgina convention opined that whatever powers Virgina delegated could be taken back at will. Several states expressly stated as a stipulation of their ratification that the states could resume the powers of self-government at their leisure.

Count the number of times the convention stated that the new union was an experiment. Same for the Federalist Papers

And last but not least, the 10th amendment reserves ALL powers not delegated to the federal government had not prohibited to the states.

[T]he 10th Amendment provides an emphatic denial of state sovereignty by the intentional abandonment of the phrase, "Each state retains its sovereignty, freedom, and independence."

ROTF!!!! They also DROPPED the word PERPETUAL, used 5 times in the Articles.

[4CJ]

Georgia had never acted in a fully independent and sovereign manner.

It's your assertion that the colonies were inseparable, and operated as a unit. Check the date of independence for Rhode Island & Providence Plantations (4 May 1776), Deleware (15 Jun 1776), New York (9 July 1776). The signing of the Declaration wasn't even complete until August. Despite a federal congress, the states were sovereign.

[Non-Sequitur]

Ratification and joining the Union was a function of the decision of each individual State (People) in its ratification convention. The decision was taken by each State in its own, solitary discretion.

With but 13 exceptions, joining the Union was a function of being admitted only after obtaining the permission of a majority of the existing states through a vote in Congress.

Secession is the same, in reverse.

Works for me.

[4CJ]

"St. Abe" mythology was on the tube last night. It started with Bennett - looked like a great show, but after 4 minutes it was all back to Sainthood. Killed on Good Friday, but they left off the resurrection. </sarcasm>

[GOPcapitalist]

Yes, you Texans were smart enough to leave your sick and wounded behind. "A good idea," you say, "medical common sense." Why? "There were several hundred miles of barren open desert between El Paso and San Antonio. Trying to transport wounded soldiers across that desert in the middle of July would have been a death sentence to them all."

Indeed. If you had a bullet wound to the shoulder and an amputated leg would you like to cross 500 miles of desert in the blazing hot sun?

Of course, your story is one big fabrication! The average high temperature at San Antonio in July is 92 degrees. In August it is 95 degrees; in September it is 95 degrees, and in October it is 90 degrees.

And you think the fact that it is consistently 95 degrees outside (i.e. pretty damn hot) is supposed to be convincing? I don't know what things are like in californy, capitan, but I invite you to spend just a few hours in the Texas summer heat without break or air conditioning (i.e. something that would replicate travel in the 1860's, meaning constant exposure to the outdoors, carrying all your necessities on your back, and working all day). I doubt you'd last the afternoon before the whining started.

There is not that much difference between July and October

Yeah, that's the point. It's continuously HOT.

and the abandoned confederate sick and wounded made the trip in September, with a Union escort for safety, just fine.

...which would mean that they had at least three months of recovery since July. Again, I don't know about things out in californy, but here people heal over time rather than staying perpetually sick. You also oughta pay close attention to your own sources. It is apparent that several of the wounded could not walk yet but were forced to go anyway by wagon and that virtually all of them needed hospital supplies.

"These men, at their earnest solicitations, I sent to San Antonio on their parole. They have been furnished with rations for forty day and with medicine and hospital stores necessary for the road. I have also furnished two wagons for those who cannot walk, He and his 1,500 remaining troops withdrew to Fort Bliss, Texas, and went to San Antonio to escape the California Column, under Union Brig. Gen. James H. Carleton.

Garbage. The campaign was already over and they were already pulling back to Fort Bliss before they even heard of Carleton. The only record I can even find of them even meeting Carleton is a small detachment that skirmished with the californians on April 15 near TUSCON ARIZONA while en route to join up with Sibley's main force, already pulling back into New Mexico. They stayed around El Paso for about a month then began to depart in June for military use elsewhere (i.e. where there was actually something to do), the last detachment leaving in July. Carleton showed up a month later and spent the rest of the war loitering and fighting indians.

[4CJ]

This need not be unanimous consent, because as a legislative majority in Congress can evolve (create) a new state, so too can it devolve a state.

Please cite the specific section of the living Constitution that delegates such power to the federal congress.

[4CJ]

I don't know if you were illustrating the nature of his errors ...

GOPCapitalist was illustrating the nature of CR's posts.

[4CJ]

Bump for the true hierarchy.

[GOPcapitalist]

More on disease and travel - the Handbook of Texas reports that there were about 500 POW's from the Arizona campaign.

"The able-bodied Confederates marched east to prison in Illinois, and in September 1862 were exchanged for Union prisoners."

There were reportedly several who died on the march from disease, and of course there were those who were not able-bodied - perhaps they are the ones sent to San Antonio?

[4CJ]

[M]etaphysical in nature, with a secret persuasive potency detectable only by their normative aura

Metaphysical, that's the ticket!

[GOPcapitalist]

"St. Abe" mythology was on the tube last night. It started with Bennett - looked like a great show, but after 4 minutes it was all back to Sainthood. Killed on Good Friday, but they left off the resurrection.

Don't you know? Saint Abe didn't really die. He's just sleeping under a mountain in a room with King Arthur and the Imam Mahdi, waiting for the day that the Union needs his salvation again.

[GOPcapitalist]

"capture: 2. To gain possession or control of" American Heritage Dictionary

...which necessarily entails a previous owner AND the question of the means by which possession or control is obtained. So I ask you again, WHO did they gain possession or control of it from and HOW did they gain that possession?

Exactly how does a trick imply the use of force?

It implies the use of a military maneuver against a physical enemy. I ask you again, WHO was that enemy that they "tricked"?

I made no claim that the California Cavalry used a ruse capture Fort Davis.

Then why all the commentary about a stratagem?

They rode right in and reclaimed it.

The fort was abandoned, so who was there that they "reclaimed" it from?

You seem to be hallucinating.

And you seem to be projecting again, as the only hallucination evident is on the part of your soldiers who arrived at a stack of ruins in the middle of the desert and believed themselves to have "captured" something.

[GOPcapitalist]

Tis an illustration of their errors. I encounter arguments from them that basically reduce to that all the time.

[nolu chan]

Welcome to The Twilight Zone.

... where troll logic is a metaphysical concept... a secret essence of troll potency... that cannot be detected directly but only as a kind of normative aura... and for that you need a good normative aura detector... I seem to recall Gianni finding one on Ebay someplace...

This guy is one slippery fish. He does this continually. So do his compadres, or should I say comrades? The correct term, good Sir, is "Brigadeers."

With his insight into sovereignty as "an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura," Daniel Farber provides comic relief, as well as a source of wisdom for El Capitan.

FARBER'S WISDOM

In the American context, sovereignty often seems to function as an al­most metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura. One hotly debated question, for example, is whether the populations of the various states existed (or still exist) as separate entities acting together as a con­glomeration, or rather as a single entity acting through the agency of multi­ple subgroups. This is reminiscent of medieval disputes about the nature of the Trinity. It is not in any real sense a question of fact or even one of law.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 29

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

Ideas about sovereignty may also color the understanding of particular constitutional issues. Thus, while it may not be useful to ask who really had sovereignty in 1776 or 1789, it is potentially useful to ask who was believed to have sovereignty then.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 30

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

A contract between the peoples of the separate states might well be termed a compact. The critical question was whether a national social compact arose at some point, bind­ing all Americans together into one people, or whether the only real social compacts were at the state level, with those political societies then forming a second-level compact. The "compact theory" of sovereignty refers to this second-level compact, which is considered to have a less fundamental status than the social compacts establishing each state. If this all seems rather aridly metaphysical, that's because it is.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 32

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

Because of its virtually metaphysical nature, it is hard to answer the the­oretical question of whether the state peoples wholly retained their sepa­rate identity, or whether adoption of the Constitution signified the existence of unified "People of the United States." To the extent that the Framers had any shared understanding on this point, which is itself some­what dubious, they probably leaned toward the view that ratification signified the emergence of a national People. On the whole, however, the best conclusion seems to be Madison's -- that the United States was unique and could not be considered either a consolidated nation or a compact of sovereign states.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, pp. 82-83

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

Still, it would be a mistake to view the Framers as purely nationalistic. During ratification, the most direct discussion of the source of the Consti­tution's legitimacy was in Federalist 39. Inquiring into the formation of the new Constitution, Madison explained that ratification takes place by the authority of the people -- "not as individuals composing one entire nation, but as composing the distinct and independent States to which they re­spectively belong." Madison went on to call ratification a "federal and not a national act," that is, "the act of the people, as forming so many independent States, not as forming one aggregate nation." This passage seems at odds with Lincoln's theory, but leaves open the possibility that ratification resulted in the creation of a unified American people.

SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 38

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

[nolu chan]

[4CJ] Killed on Good Friday, but they left off the resurrection.

Heretic!

How can you say such a thing? Ever since Dr. Farber published his scholarly work, everyone knows that St. Abe was shot on April 12, 1865. That was a Wednesday. Will you at least try to remember your liberal troll history?

Daniel Farber, Lincoln's Constitution, 2003, Chapter 1, page 8:

The Civil War began in the chilly morning hours of April 12, 1861, when a Confederate battery opened fire on Fort Sumter.

* * *

The early morning shots of April 12 began the bloodiest war in American history. It was four years to the day later when Major Anderson ran the U.S. flag back up at sumter. In the meantime, the world had forever changed. "By then," in the words of a leading historian, "[s]lavery was dead; secession was dead; and six hundred thousand men were dead." "That," he added, "was the basic balance sheet of the sectional conflict."

Later that same day, April 12, 1865, yet another price was added to that balance sheet. As the war had begun with the death of a single individual, so it would end. That evening, just about the time Major Anderson toasted the president of the United States, John Wilkes Booth entered the presidential box at Ford's Theater. By the next morning, Lincoln was dead."

[4CJ]

This passage seems at odds with Lincoln's theory, but leaves open the possibility that ratification resulted in the creation of a unified American people.

This passage, 'ratification a "federal and not a national act," that is, "the act of the people, as forming so many independent States, not as forming one aggregate nation"', IS at odds with Lincoln's THEORY. Gouverneur Morris' motion to submit ratification to the people en masse did not even recieve a second.

And the American people were not unified by ratification. No part of the Constitution binds the people of the several states into one group, every action is done by the states, not the people.

[4CJ]

Will you at least try to remember your liberal troll history?

Sorry, but I guess I'm metaphysically challenged.

[LogicWings]

The point here is, anything not conveyed to the Union specifically and explicitly, was reserved. The Tenth Amendment memorializes and formalizes the reservation, and makes it explicit.

Ergo, secession need not be described in, by, or under the Constitution, because it is a sovereign act of the People, i.e. a supraconstitutional act undertaken at a pay grade above the Constitution itself, and ergo above and beyond the review of any constitutional officer of the Union.

Ahh, perfectly clear. Not being expert in this area I wasn't clear on how the soveriegnty of the States was precedent to the Union and the federal government. In a sense the 10th Amendment is the Constitutional provision for secession, so while my reasoning isn't really "inside out" yours makes it much more precise and clear.

This will be useful to me in other areas, so I'm glad I joined the discussion. Thanks