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).

[Non-Seq #2716] Here is a link to an Edward Zwick article called "Anti-Imperialist Writings of Edgar Lee Masters" and which details his close association with social liberals like William Jennings Bryan and Clarence Darrow. You will note about half way down that Zwick mentions that Masters joined the national committee of the All-American Anti-Imperialist League in 1928. That organization had been founded by the Communist Workers Party three years before.

Non-Sequitur's source, boondocksnet.com, is so noteworthy, I will present the linked page which he is apparently too bashful to present. In all your excitement, you turned Jim Zwick into Edward Zwick.

http://www.boondocksnet.com//ai/masters/

Anti-Imperialist Writings by Edgar Lee Masters
By Jim Zwick
Although he began his career as a lawyer, Edgar Lee Masters (1869-1950) is well-known today as a poet, his Spoon River Anthology still appreciated by many. Unlike most of the anti-imperialists, Masters opposed the Spanish-American War. "I had read enough in the papers to know that war was avoidable," he wrote in his autobiography, Across Spoon River (1936), "and I resolved to have nothing to do with it." He was roused to action by the annexation of the Philippines and the beginning of the new war there. He threw himself into studying the history of the Constitution and the United States' republican form of government, and within the next few years wrote a play, Maximilian (1902), a volume of poetry, and a series of essays on imperialism. During the 1900 presidential campaign, he wrote numerous essays and speeches opposing imperialism and supporting the campaign of William Jennings Bryan, the anti-imperialist Democratic candidate. In October of 1900, The Public, a Chicago-based weekly edited by the single taxer and anti-imperialist, Louis F. Post, called Masters' pamphlet, The Constitution and Our Insular Possessions (1900), "the best presentation of the Philippine question, in its constitutional and other legal aspects, that has yet come to our attention."
His literary and political efforts received favorable reviews from the anti-imperialists but hurt his law practice. His isolation led him to accept an offer to become the law partner of Clarence Darrow, one of the most prominent civil rights lawyers of the time. He explained in his autobiography:
I was known over Chicago and Illinois by this time as the author of the constitutional articles and political essays published in the Chronicle, and in Tom Watson's Jeffersonian Magazine; and also as the author of a pamphlet entitled "The Constitution and Our Insular Possessions," which had made the conservative lawyers of Chicago indignant at me. Thus my life had moved in such a way that I was unwelcome among the lawyers who were doing a large business, and there was no place for me to go but to the radicals.
While in practice with Darrow, Masters collected some of the essays written during and shortly after the 1900 campaign and published them as The New Star Chamber and Other Essays (1904). He published his early anti-imperialist poems in The Blood of the Prophets (1905) under the pseudonym Dexter Wallace. Darrow had been a vice president of the Chicago Liberty Meeting of April 1899 that led to the formation of the Central Anti-Imperialist League in Chicago, and he would later join the national committee of the All-America Anti-Imperialist League (1928). In 1904, Masters signed the Philippine Independence Committee's petition to the Republican and Democratic national conventions calling for the ultimate independence of the Philippines. His opposition to imperialism continued for many years. He returned to the turn-of-the-century events in the Philippines in his Spoon River Anthology (1915) and a verse play, Manila (1930), and in 1916 he reminded the country that it was the seizure of the Philippines that made it difficult to stay neutral as warfare raged in Europe. The Spanish-American War "changed the form of our government," he wrote in his autobiography, and entrance into the World War "would solidify that change."

I positively cannot understand why you left out what Zwick actually wrote about the All-American Anti-Imperialist League. That is at the following boondocknet.com link.

http://www.boondocksnet.com/ai/ail/allamer.html

The All-America Anti-Imperialist League
by Jim Zwick
* * *
Although it was started by the Workers (Communist) Party, many leading liberals and peace advocates within the United States signed on as members of its national committee, including the lawyer, Clarence Darrow; Roger Baldwin of the the American Civil Liberties Union; Freda Kirchwey and Lewis S. Gannett of The Nation; W. E. B. Du Bois, the leading African American intellectual; William Pickens of the National Association for the Advancement of Colored People (NAACP); Robert Morss Lovett of the New Republic; and Scott Nearing. Only one former officer of the Anti-Imperialist League, S. A. Stockwell, joined the new organization's national committee. Stockwell was the first president of the Minneapolis Anti-Imperialist League (1899), a nationally prominent leader of the single tax movement, and for many years a member of the Minnesota House of Representatives.
The League reached beyond middle class and intellectual circles for its officers to develop a multi-racial and multi-class coalition. Undoubtedly the League's most noteworthy member was Socrates Sandino, half brother of Augusto Sandino, the leader of the Nicaraguan revolution. Socrates Sandino made a national speaking tour for the League and gained considerable attention from the U.S. media. In 1934, both he and his half-brother Augusto were assassinated in Nicaragua. Besides the prominent people named on its letterhead, the League's leadership included representatives of the Filipino Association of Chicago, the Filipino Workers Club, the Women's International League for Peace and Freedom, Sun Yat Sen Lodge, Machinists Lodge, the United Brotherhood of Carpenters and Joiners, Jewish Marxian Youth Alliance, Teachers' Union, Sociedad Mutulista, and other labor, national, and reform organizations. The All-America Anti-Imperialist League was replaced in 1933 by the American League Against War and Fascism.

I never knew that the United Brotherhood of Carpenters and Joiners was a Communist organization. Good catch, Non-Seq. As well, I knew the ACLU was on the left, but I never realized it was as far left as The Brigade. I never knew that the NAACP was as radical, whacko, liberal left as The Brigade either. The Machinists Lodge as well. Who knew? Thanks for pointing this all out, Non-Sequitur. </sarcasm>

How about your Brigade Commander? How deep do you have to dredge to find him? Your fearless leader.

Gee. I'll bet if you had to pick between being John Wilkes Booth or your Brigade Commander, you probably would not be able to decide.

You will note that Nolu Chan and his buddies will label James McPherson Carl Sandburg as a socialists and dismiss their positions as a result, yet Nolu Chan has no trouble quoting from Communist supporters like Edgar Lee Masters.

Quoth the non-sequitur: "Squack! Tu quoque! Tu quoque!"

Oh, and BTW, Masters wrote for H.L. Mencken and is almost universally recognized as having political views that were "Jeffersonian." Says Matthew Norman in a University of Illinois publication:

"Masters thought Jefferson was the greatest American statesman, and he viewed American history as a continuing struggle between Jeffersonian and Hamiltonian principles. This Manichean interpretation of history is evident in Masters's writing as early as 1904, when he published a collection of political essays entitled The New Star Chamber. In those essays, Masters praises Jefferson as the man "who gave form and purpose to the republic," while Hamilton is condemned as a monarchist whose policies amounted to nothing less than "imperialism."14 As early as 1904, Masters feared that the republic of Jefferson had decayed into a corrupt Hamiltonian empire."

His politics were also characterized by a belief in isolationism - traditionally a conservative viewpoint. So, non-seq, are you telling me that Jefferson, H.L. Mencken, and all the right wing isolationists of the early 20th century were communists?

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