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
Where is the part where Lincoln ordered the judge arrested?
Matt Dillon?
I have a Ph. D. What's your point?
I have a Ph. D. What's your point?
That you're better than me, I guess. And I had better not dare question anything you say.
My point is that Noni is not as qualified ad DiLorenzo.
Damn straight!
You're still confusing several key details of the case. Merrick was not arrested into the custody of the military but rather placed under house arrest. Murphy's attorney Foley is the one who was arrested into the custody of the military (i.e. a "normal" arrest rather than a house arrest).
As for the orders, there were several. Porter is the one who ordered to his men that Merrick be placed under house arrest until the duration of the Murphy case (the idea being to prevent him from returning to his courtroom to hear the case). When the other judges found out about Merrick's situation they issued a contempt of court summons against Porter.
Porter responded to the contempt order by informing the court via surrogate that Lincoln authorized him to act as he did and ordered the district attorney to prevent the ruling of contempt from being served against Porter.
(pssst ... Ward Lamon didn't even write the books attributed to him)
That is only partially accurate. Lamon's name actually appears on two different biographies of Lincoln, one of them ghost written and the other his own.
The first biography was published in 1872 and did indeed rely heavily upon a ghost writer he hired, Chauncey Black. Lamon contracted the book out to Black, though he did provide virtually all of its source material in the form of personal papers and a loaned collection of letters and interviews accumulated by William Herndon for his own biography of Lincoln some years later. Black's first version came across as overly negative towards Lincoln and prompted David Davis to advise that Lamon make a revision. Lamon did just that, toning down the material substantially though still portraying a less than saintly Lincoln. Though some parts of the 1872 book are still questionable, Lamon spent a great deal of time in the mid 1870's writing and publishing his own defenses of the book when some of the unflattering anecdotes were challenged.
The second Lamon book is given substantially greater and in fact practically universal acclaim by historians. Lamon himself wrote it, largely at the urging of Lincoln's former Secretary of the Interior after the two conversed upon the fact that they were among the last living members of Lincoln's "inner circle." Unfortunately it was still incomplete at the time of Lamon's death so the timeline between each of the essays is very fragmentary. Lamon's daughter had the portions that were completed published around the turn of the century following her father's death. It is from this second Lamon book that historians get some of the most famous Lincoln anecdotes such as the warnings he received not to go to Ford's theater and the midnight pass through Baltimore before the inauguration.
"To dole out patronage, Pierce and his Cabinet {which included Sec. Treasury James Guthrie of KY; Sec. of War Jefferson Davis of MS; Sec. of Navy James Dobbin of NC; fellow doughface Sec. of State William Marcy of NY; and Attorney General Caleb Cushing of MA, who who show his stripes later when he bolted the Northern/Douglas wing of the Democrat Party to preside over the nomination of John Breckinridge} met daily, with two considerations dominating the agenda: distribution among the factions and geographical representation. The latter was necessary for congressional approval." (L. Gara, The Presidency of Franklin Pierce)
It is also said that Pierce "made no appointment that would offend southern sensibilities." Pierce appointed several rabidly pro-southern judges to high positions. Regarding one such appointment a newspaper opined, "If President Pierce wishes to create an anti-slavery sentiment that nothing short of the total abolition of slavery will quiet, he cannot accomplish in any other way as soon as by ... such tools of slave power."
One of the major problems which faced Lincoln early in the War was an entrenched, sometimes disloyal, pro-southern judiciary.
No, I'm confused on how this supports DiLusional's claim that it is evidence that Lincoln personally ordered Taney's arrest. For this to support that claim, then it stands to reason that Lincoln must have personally ordered Merrick's arrest, too. So, where is the evidence that Lincoln personally ordered Merrick's arrest? It seems that it wasn't included in any of your posts.
So which book does the Taney arrest story come from?
To Lincoln? Their oath is to uphold the Constitution, not a dictator.
Nah, simply authorizing it would suffice to demonstrate his willingness to use the arrest of judges to obstruct the judiciary from ruling against him.
So, where is the evidence that Lincoln personally ordered Merrick's arrest?
He personally authorized it as reported to the court by Porter's surrogate.
It doesn't come from a book. It comes from a document in Lamon's papers that very well may have been intended for the book that he died before completing.
New Hampshire. BTW, attacking Merrick's person does not alter either the case he heard or the wanton abuses committed against him. Besides, everything I've read about him suggests that he had a highly respected professional career - long standing judge, congressman after the war, law professor at Georgetown. IIRC you made several unsubstantiated allegations against Merrick on the other thread, claiming that he was a "confederate sympathizer" - a report that you seemingly based off a website that did not contain any evidence whatsoever to that end. Now it seems that the only thing you got against him is to malign President Pierce, which again fails to address either issue, be it Merrick or the abuses committed against him.
You also neglect to account for how your gratuitous "confederate sympathizer" charge pertains to this case. Murphy was a northerner and the writ was issued to him on the grounds that he was an underage minor being held in the military service of the northern army. The case had nothing to do with arrests of accused secessionists.
In other words, the facts still remain undisputed:
1. Lincoln ignored and refused a federal court's writ of habeas corpus for Murphy.
2. To further impede the court, Lincoln authorized the house arrest of Judge Merrick and prevented the circuit panel from serving Porter with contempt.
Both of these actions were felonious.
Your source makes it sound as if Breckinridge's candidacy was some fringe outsider challenge for the nomination. In reality, Breckinridge was the INCUMBENT vice president from a moderate border state (Kentucky) and thus his party's heir apparent for the nomination. If anything, Breckinridge was the status quo candidate in 1860.
capitan has been making unsubstantiated and wholly gratuitous allegations of confederate sympathy against Merrick for weeks. I caught him doing this on another thread. He googled Merrick's name in search of dirt and found nothing, so instead he repeated what he found under a mini-bio without providing a link and embellished it with the claim of confederate sympathies. I later found the site that he copied the mini-bio from because it had a unique typo in the spelling of Merrick's middle name, which capitan repeated. Sure enough, it said absolutely nothing even remotely hinting at any confederate sympathies. As usual, capitan simply pulled that one out of his backside.
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