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).

Lincoln’s Spectacular Lie
by Thomas J. DiLorenzo

The cornerstone of the Lincoln Legend is a spectacular lie. As eloquently stated by former syndicated columnist James J. Kilpatrick in his 1957 book, The Sovereign States: "The delusion that sovereignty is vested in the whole people of the United States is one of the strangest misconceptions of our public life" (p. 15). Lincoln espoused this fable in order to make the preposterous argument that no such thing as state sovereignty ever existed; the states were never at any time free and independent of the federal government; they did not in fact create the federal government by ratifying the Constitution; and that, therefore, no group of citizens could ever secede from the federal government.

As Emory University philosopher Donald Livingston has said, this is not only a lie, but a spectacular lie. It is still widely believed, however, thanks in part to the efforts of such propagandists as Harry Jaffa and his fellow Lincoln cultists at the Claremont Institute, the Declaration Foundation, and other state-worshipping propaganda mills.

Lincoln claimed that the federal government was really created by the Declaration of Independence, not the Constitution, despite the fact that the former document does not have the legal authority that the Constitution has. But the Declaration itself is an expression of state sovereignty, a fact which contradicts Lincoln’s whole thesis. The concluding paragraph declares to the world that the colonists were seceding from the British Empire as citizens of the free and independent American states, not as the people as a whole. "These colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown... and that as Free and Independent States, they have full power to levy War, conclude Peace, contract Alliances, establish commerce, and to do all other Acts and Things which Independent States may of right do."

When the Revolution ended the King of England entered into a peace treaty not with "the United States" or "the people as a whole" but with the individual states. (In my May 2002 Independent Institute debate with Harry Jaffa he made quite the buffoon of himself by angrily denying this plain historical fact). Article 1 of the Treaty with Great Britain states:

His Britannic Majesty acknowledges the said United States, vis, New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, Relinquishes all claims to the Government, proprietary and territorial rights of The same, and every part thereof.

When the sovereign states created a federal government as their agent with the Articles of Confederation they made a point of maintaining their independent status. As defined in Article 1, Section II: "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

It is important to note that certain powers were delegated to the federal government but not abandoned. Sovereignty always rested in the citizens of the free and independent states.

Although the state delegations that adopted the Articles hoped that the Union created by them would be perpetual, they seceded from the Articles after just six years and dropped the phrase "perpetual Union" from the new Constitution.

Apologists for centralized governmental power dishonestly dwell on the preamble of the Constitution which reads, "We the People of the United States, in order to form a more perfect Union..." They do this in order to argue that the government formed by the Constitution was created by "the whole people" and not the sovereign states. But the reason why the states were not listed individually in the Preamble is that when it was written it was not known which states would ratify the Constitution. Thus, it was left as a generalized "We the People..." It is nothing more than a semantic artifact.

No less a figure than James Madison, the Father of the Constitution, explained in Federalist 39 that the Constitution was to be ratified by the people "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong" (emphasis added). He also stated that the federal government gets all of its authority from the sovereign states and not the "whole people." The "whole people" who resided in the states stretching from Maine to Georgia at the time had nothing at all to do with the ratification of the Constitution. It was ratified by state political conventions (not state legislatures). Madison continued on to say that each state ratifying the Constitution "is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act."

Virginia, New York and Rhode Island specifically reserved the right to withdraw from the Union if it ever became "destructive of our liberties." (This is another plain historical fact that the delusional Jaffa angrily denied during my debate with him). Here’s what the Virginia delegation to the Constitutional Convention put in writing:

We the delegates of the people of Virginia... Do, in the name and behalf of the people of Virginia, declare and make known that the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them at their will...

New York and Rhode Island made almost identical statements as conditions of ratifying the Constitution.

The phrase "united States" is always in the plural in the Constitution, signifying not one consolidated government but that the independent and sovereign states were united in forming the federal government as their agent with only narrowly defined, delegated powers.

The president is not elected by "the whole people" according to the Constitution but by an electoral college that consists of appointees from each state, chosen by the state legislatures.

Nor may any new state be formed "within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as Congress." (Lincoln clearly ignored this when he orchestrated the secession of Western Virginia from Virginia). Amending the Constitution still requires ratification by three-fourths of the states, not the "whole people."

Thus, all three of these founding documents – the Declaration of Independence, Articles of Confederation, and the Constitution – declare the states to be free and independent. Sovereignty lies in the citizens of the free and independent states, not the people as a whole. The founders feared mass democracy and sought to strictly limit its domain. It is patently absurd to argue that the government they created was meant to be a mass democracy of "the whole people."

Lincoln’s theory of the non-existence of state sovereignty never came to be accepted by the strength of the argument, for the argument has no strength and no factual basis. Instead, he waged the bloodiest war in world history up to that point to "prove" himself right.

The myth serves the purpose of making sure that the American people can never regain true sovereignty over their government. It should not be surprising to anyone that the modern-day neoconservative propagandists who perpetuate this myth are all advocates of an even more activist, centralized state (in pursuit of "national greatness," they say). Their latest crusade involves invoking the sainted Lincoln, time and again, to urge President Bush to invade and occupy much of the Middle East. They are advocates of national power, an imperial worldwide empire, and unlimited democracy. They are the enemies of limited, constitutional government although they cynically invoke the founding fathers in much of their propaganda. These are people whose entire careers are based on the perpetuation of a spectacular lie, which is why they become so apoplectic whenever anyone threatens to expose the real Lincoln to the American public.

February 25, 2003

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