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Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice
Lew Rockwell.com ^ | August 19, 2004 | Thomas J. DiLorenzo

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


TOPICS: Constitution/Conservatism; Culture/Society; Government; Miscellaneous
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To: Non-Sequitur
[Non-Seq] You expect us to believe that you support Bennett selectively, only when he fits with your agenda. Bennett of Lincoln? Good. Bennett on reparations? Bad. Sure. Makes perfect sense.

I neither said Bennett was good nor bad on reparations. It is in no way relevant to anything I have been discussing. I said I see no need to indulge you in your digression about something that has not happened and is unlikely to happen. Should you be in the grip of an irresistable impulse to discuss the subject of reparations, I suggest you go to a thread where someone is discussing reparations, or simply start your own thread on that subject.

Do you continue your idolatrous support of The Brigade Commander? Or is your idolatrous support of The Brigade Commander selective?

2,821 posted on 10/11/2004 12:55:18 AM PDT by nolu chan (What's the frequency?)
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To: capitan_refugio; Non-Sequitur
[nc #2795] Are you still a devout disciple of The Brigade Commander? Do you support him in his post-FR endeavors? I mean, if you had to choose, which one would you rather be, the holy and annointed Jefferson Davis, or The Brigade Commander?

[Non-Seq #2796] Holy and annointed Jefferson Davis?

[cr #2818] I am hoping he simply neglected to use sarcasm tags ...

No sarcasm tag was required. I was making comparison to The Brigade Commander whom you two have publicly worshipped for years.

When I confronted cr with the choice of whether he would now rather be John Wilkes Booth or The Brigade Commander, he could not make that difficult choice.

When I confronted nonseq with the choice of whether he would rather be Jefferson Davis or The Brigade Commander, he also was unable to choose.

Surely Booth and Davis must be holy and annointed, and possessed of great virtue, if you two faithful Brigade soldiers are unable to choose your very own Brigade Commander over them. You must consider them at least equal in merit as your very own Brigade Commander, the very best your Brigade has to offer. For two people who have worshipped their Brigade Commander, this is very high praise indeed.

2,822 posted on 10/11/2004 1:10:23 AM PDT by nolu chan (What's the frequency?)
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To: capitan_refugio
The Treaty of Paris came two years after the Articles of Confederation & perpetual Union had been finally, unanimously ratified. The confederal Union had already defined itself.

The confederal Union, of course, was a different entity -- different contract -- from the Union that existed after the ratification of the Constitution by nine of the States seceding from the original confederal, "perpetual" Union to form the newer, improved Union. The one that didn't have the word "perpetual" in its founding document anywhere.

You are aware, since it has been pointed out to you and your cohorts repeatedly, in this and other threads, that the nature of the Union under the Articles was very different from what we are accustomed to, in that it existed in and through the Congress, which acted as an agent for all the sovereign States that composed the Union when they sat together, and otherwise ran their own affairs.

In support of that, the United States sent one ambassador to the Court of St. James's - not thirteen. The United States sent only one ambassador to France - not thirteen.

Of course, because Congress acted as agent for the United (plural) States (plural), conducting their foreign policy on a coordinated basis that did not imply, embody, or otherwise give the slightest countenance to the Hamiltonian national entity whose existence you are continuing to insinuate existed. Indeed, the Hamiltonian full package was rejected decisively by the People in their ratification conventions, as well as in the Constitutional Convention. Indeed, it is fair to say that Lincoln's war was to impose Hamiton on an unwitting or resistant country

Whatever King George III might have thought of the situation, the former colonists had formed their own country (singular), by their own accord.

That you should continue to insist, with Hamiltonian and Lincolnian deceptiveness, that the United States was and is a unitary political monolith governed by a runaway national government of "inherent [and usurpatory] authority", is completely revealing of your bias -- and of your factional interest.

But to speak to your implicit point, that the Treaty of Paris contributed nothing to U.S. sovereignty (you are arguing that line, aren't you?) that the colonists themselves had not won on the battlefield, I think you err in discounting the extraction of British recognition and conferral of sovereignty to the United States ( to each and every one, separately, and separately named). I won't bother to repeat my original point, beyond pointing out that not even a majority of the British forces in America had left by the time the treaty was concluded, and that peace in America and the secure possession of our borders flowed from the British concession of our sovereignty. The British could, by refusing to treat with us, have kept the issue in the air for many years after Yorktown, had they been so inclined, and could have resumed campaigning against the United States in any given season, under color of a claim of Crown sovereignty and a lawful initiative to restore the legitimate government -- just as Lincoln did with the South.

Put another way, the importance of the Treaty of Paris and what it gave the United States can be measured by what Jefferson Davis failed to obtain from the former government of the Confederate States.

2,823 posted on 10/11/2004 1:33:32 AM PDT by lentulusgracchus ("Whatever." -- sinkspur)
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To: lentulusgracchus
NC - "And so we have the proposition that as Congress can approve entry of a new state, Congress can undo the entry of a state. However, just because Congress can do anything else does not mean that it can undo that other thing."

LG - "Quite so. This is one of the classic fallacies, demonstrated in a way amenable to exemplification in a collegiate-level course on logic."

What we have hear is a case of one poster dishonestly misrepresenting the original statement and the other continuing on in blissful ignorance of the first part.

The fundamental question remains, can one of the states leave the Union by consent of the Congress? Your cabal makes the argument that a state can leave on it own volition, but then illogically denies that it can also leave with the blessing of the other states.

Further, the cabal also parses the term "admit" in Article IV, Section 3, Clause 1 of the Constitution ("the admission clause"), at the same time denying the role of the Congress in acquiring the territory and organizing new states prior to admission.

By way of a little history, under the Articles there was considerable debate as to how and under what circumstances new states might join the Union. Article 9 provided the threshold vote, and provided for Canada's entry, but gave no particular mechanism. Consequently, no new state entered the Union under the Articles (although the provisional State of Franklin organized itself in disputed lands, and the breakaway "Republic of Vermont" were points of discussion). Nor was it until 1787 that the Congress was able to establish a framework for the organization of states from territories.

Even prior to the ratification of the Constitution of 1787, Congress was the gatekeeper of the Union. By the Northwest Ordinance of 1787, Congress established the policies by which the United States could expand, by the admission of new states on the same basis as the existing states. (Interestingly, in keeping with the Founding Principles of the Revolutionary Era, the Ordinance banned slavery in the Northwest Territory.)

If territory is to be added to the jurisdiction of the United States, Congress will have a role, if not the predominant role. Territory has been added through treaty (Treaty of Guadalupe Hidalgo, Louisiana Purchase Agreement, etc.), claim (Oregon country, Wake Atoll, etc.), purchase (Gadsen Purchase, Alaska, etc.), and annexation (Texas, etc.).

It has been the sole prerogative of Congress to organize these territories. "The term 'United States' may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the collective name of the states which are united by and under the Constitution." Hooven & Allison Co. v. Evatt,(1945)

All those born in U.S. insular areas are U.S. citizens. However, the extent of the rights by that citizenship are determined by Congress. The boundaries of territories, commonwealths, and possessions are determined by Congress. The nature of local government, if any, is determined by Congress. The US Supreme Court has established that the "constitution and federal law apply only temporarily to the extent Congress determines in its discretion under the territorial clause" (Reid v Covert, 1957).

The plenary nature of the "territory clause" (Article IV, Section 3, Clause 2) of the Constitution establishes the Congress as the organizing entity, rather than the people of the territory themselves. Congress may, or may not, choose to organize a possession with an Organic Act.

If the people of an organized Territory seek statehood, it is the Enabling Act of Congress which establishes the requirements those people must meet prior to joining the Union.

NO people may become a state without an affirmative act of Congress. As such, it is not only reasonable, but it is entirely accurate to say that Congress "creates" new states. And if Congress is the responsible party for the organization of territory for admission as new states, is it also reasonable to believe that Congress would have a similar responsibility if a state wanted to change it boundaries, merge with another state, or leave the Union entirely.

2,824 posted on 10/11/2004 1:41:44 AM PDT by capitan_refugio
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To: rustbucket

Great Britain exists as a nation-state. The United States of America is also a nation-state. The 50 states of the Union are subordinate entities.


2,825 posted on 10/11/2004 1:44:39 AM PDT by capitan_refugio
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To: nolu chan
" I was making comparison to The Brigade Commander whom you two have publicly worshipped for years."

You must have some Navaho blood. You are code-talking.

Who is the "Brigade Commander"?

"When I confronted cr with the choice of whether he would now rather be John Wilkes Booth or The Brigade Commander, he could not make that difficult choice."

Where did you do that?

2,826 posted on 10/11/2004 1:48:01 AM PDT by capitan_refugio
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To: lentulusgracchus
"The confederal Union, of course, was a different entity -- different contract -- from the Union that existed after the ratification of the Constitution by nine of the States seceding from the original confederal, "perpetual" Union to form the newer, improved Union. The one that didn't have the word "perpetual" in its founding document anywhere."

The Union was the Union and remains the Union. The Articles and the Constitution are the operating agreements. There was never a secession of the United States of America to form the United States of America. Not only the states themselves, but many other departments of the government (Army, Navy, Post Office, Marine Corps, embassies and ambassadors) continued on throughout he transition from confederal government under the Articles to federal government under the Constitution. Ratification of the Constitution did NOT create a new country.

As I have explained it to your confederates (pardon the pun), the mode of ratification of the constitution by the people in convention made the use of the term perpetual redundant, because the understanding at the time, and indeed expressed in the Preamble, was that the perpetual Union was being made "more perfect." It is, however, significant to note, that the terminology concerning "sovereign" states was dropped in its entirety. Such terminology was a salve to a few southern states in 1778, and it was wholly unnecessary by 1787.

"That you should continue to insist, with Hamiltonian and Lincolnian deceptiveness, that the United States was and is a unitary political monolith governed by a runaway national government of "inherent [and usurpatory] authority", is completely revealing of your bias -- and of your factional interest."

There is nothing deceptive about it. Within its sphere of authority, the federal government of the nation is supreme. The framers created a "composite republic" (to use Madison's term). In it the states had a limited, semi-sovereingty.

"... I think you err in discounting the extraction of British recognition and conferral of sovereignty to the United States ( to each and every one, separately, and separately named)"

Separately named following the abbereviation "viz" which means "namely." The former colonies, and states since 1776, were named to define the subdivisions of the greater entity, the United States.

Confederations as politcal entities were not new to Europe in 1783. Switzerland and the Dutch confederation are just two examples. And just as it is wrong to say the Swiss Cantons were fully sovereign polities, so too is it incorrect to contend that the ex-colonies were fully sovereign as well.

"But to speak to your implicit point, that the Treaty of Paris contributed nothing to U.S. sovereignty (you are arguing that line, aren't you?) that the colonists themselves had not won on the battlefield ..."

The Treaty of Paris provided diplomatic recognition. Sovereignty was another matter, claimed at Independence, and established by force of arms.

2,827 posted on 10/11/2004 2:11:45 AM PDT by capitan_refugio
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To: nolu chan

Well of course not. If you want to claim that you believe Bennett on Lincoln and haven't formed an opinion on slave reparations, why then you go right ahead. I'm sure that a lot of people will believe you.


2,828 posted on 10/11/2004 3:40:37 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: Non-Sequitur
[cr #2828] If you want to claim that you believe Bennett on Lincoln and haven't formed an opinion on slave reparations, why then you go right ahead. I'm sure that a lot of people will believe you.

I see you still have that reading comprehension problem.

[nc #2821] I neither said Bennett was good nor bad on reparations. It is in no way relevant to anything I have been discussing. I said I see no need to indulge you in your digression about something that has not happened and is unlikely to happen. Should you be in the grip of an irresistable impulse to discuss the subject of reparations, I suggest you go to a thread where someone is discussing reparations, or simply start your own thread on that subject.

2,829 posted on 10/11/2004 5:41:23 AM PDT by nolu chan (What's the frequency?)
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To: nolu chan
I see you still have that reading comprehension problem.

It's you that seems to have a problem with comprehension. I clearly stated that you have every right to claim whatever belief that you want. I'm sure that there are people out there that believe you. Take comfort in that.

2,830 posted on 10/11/2004 5:54:44 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: capitan_refugio
[cr #2826] Who is the "Brigade Commander"?

BTW, who is this Mr. Ed if you are not referring to Whiskey Papa? I am aware of your usage of the term "Walt Brigade." Are they one in the same?

2,378 posted on 10/02/2004 2:21:28 AM CDT by capitan_refugio

[cr #2826] Where did you do that?

nc#2729 and nc#2772.

2,831 posted on 10/11/2004 5:56:07 AM PDT by nolu chan (What's the frequency?)
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To: capitan_refugio; rustbucket
[cr] Great Britain exists as a nation-state.

No it does not.

The United Kingdom exists as the nation-state. Great Britain is the major part of the UK.

2,832 posted on 10/11/2004 5:58:32 AM PDT by nolu chan (What's the frequency?)
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To: Non-Sequitur
I see you still have that reading comprehension problem.

[nc #2821] I neither said Bennett was good nor bad on reparations. It is in no way relevant to anything I have been discussing. I said I see no need to indulge you in your digression about something that has not happened and is unlikely to happen. Should you be in the grip of an irresistable impulse to discuss the subject of reparations, I suggest you go to a thread where someone is discussing reparations, or simply start your own thread on that subject.

When confronted with irrelevant nonsense, I not only have the right to express whatever opinion I want, I have the right to express no opinion at all.

2,833 posted on 10/11/2004 6:02:41 AM PDT by nolu chan (What's the frequency?)
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To: nolu chan
When confronted with irrelevant nonsense, I not only have the right to express whatever opinion I want, I have the right to express no opinion at all.

And I've never said otherwise. Support what you want, don't support what you want, I'm sure that most people take it at face value.

2,834 posted on 10/11/2004 6:06:55 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: capitan_refugio

Wasn't it something about Lincoln his soul-mate, Marx?


2,835 posted on 10/11/2004 6:12:46 AM PDT by nolu chan (What's the frequency?)
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To: capitan_refugio
[cr] Nothing new here.

How true. You still cannot meet the argument on the merits. The best you have ever been able to do is invent sources that proved not to exist.

2,836 posted on 10/11/2004 6:14:37 AM PDT by nolu chan (What's the frequency?)
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To: nolu chan; capitan_refugio
Wasn't it something about Lincoln his soul-mate, Marx?

I thought that you claimed Herndon was Lincoln's soul-mate. Having problems keeping your fairy-tales straight? (No pun intended.)

2,837 posted on 10/11/2004 6:17:39 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: Non-Sequitur

I am sure all will take note of your desperate attempt at digression in order to avoid the merits of the argument.


2,838 posted on 10/11/2004 6:20:32 AM PDT by nolu chan (What's the frequency?)
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To: nolu chan
I am sure all will take note of your desperate attempt at digression in order to avoid the merits of the argument.

I'll take your word that your arguement had merit.

2,839 posted on 10/11/2004 6:23:18 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: capitan_refugio; lentulusgracchus
In his [Lincoln's] imagination the Union was a mystical paraclete which had hovered in mid air before it descended into the lifeless bodies of the states, and gave them breath. The Union was an entity. It was once a noun, like beauty, goodness, justice. But it had achieved an existence all its own, as tangible as that of the flag. It was a soul, a body, a Messiah for whom men should fight and die, regardless of everything else. It was a precious and sacred reality to be saved even at the cost of the continuance of negro slavery. If some slaves could be freed to save the Union,that should be done. If the Union could be saved by not freeing any slave, that should be the course. What he would do about the colored race, he would do because it helped to save the Union; and what he forbore to do would be for the same purpose.

-- Edgar Lee Masters, Lincoln, The Man, p. 316

"It was a precioussssssss....."

2,840 posted on 10/11/2004 6:31:59 AM PDT by nolu chan (What's the frequency?)
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