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
Seems like Lincoln's henchmen had a history of issuing open-ended arrest oreders, even that of another sitting judge, in the middle of a case, in open court.
You're raising the bar, aren't you? GOPcapitalist originally cited the incident as corroborating evidence of "patterns and practices". Lincoln's involvement is clear from the Court's records, and his instantaneous intercession to prevent the delivery of the Court's summons to General Porter shows that his connection to the events was contemporary and intimate, and sufficient to sustain the charge that he must have known about Porter's house arrest of Judge Merrick, but did nothing about it.
Which is now brightly glowing. One ear to you, sir.
Or not?
If Lincoln authorized this particular act then I would put that in the same category as the alleged Taney arrest order. Are you claiming that?
He personally authorized it as reported to the court by Porter's surrogate.
And the difference between authorizing and ordering is what? If Lincoln specifically authorized this individual detention then that is one thing. If you're saying Lincoln authorized it because he suspended habeas corpus then that's another.
Not really, since Tommy DiLorenzo chose this incident to support his claim that Lincoln personally ordered the arrest of Taney.
It is said that Douglas and Breckinridge were the favorite candidates; however, the convention broke up over the slavery plank (with Southerners insisting that no government - federal, state, or local - could outlaw slavery in the territories) before the balloting for the Presidential nomination began. Several authors suggest that the real reason behind the break-up was that the Southerners did not have the strength any longer to enforce their will in the convention and were unwilling to compromise. Likewise, they did not have the voting strength to force a Breckinridge candidacy. When the Democrats reconvened in their traditional convention city of Baltimore, the remaining Southerners again walked out.
The split in the Democrat Party, as much as anything else, ensured Lincoln's election as President.
As it was, Breckinridge was somewhat of a reluctant candidate and eventually garnered only 18% of the popular vote. Douglas, the mainsteam candidate of the Democrats was able to take nearly 30% of the popular vote, but only carried Missouri and split electoral votes from New Jersey. The combined popular vote of Breckinridge and Douglas would have swamped Lincoln, but a careful analysis of the distribution of votes indicates it would have remained a close Lincoln victory in the Electoral College. Even if Douglas had all of Breckinridge's electoral votes, and Bell's too, he still was short (pardon the pun). Of course, there is no way to know how well Breckinridge would have polled in the North instead of Douglas. He may possibly have taken one or two states Lincoln won in close voting, but more likely, he would have done no better than Douglas.
The bottom line is that the breakaway Breckinridge candidacy facilitated Lincoln's election.
With regard to Merrick, there is no way he would have been appointed to his seat on the DC bench over the objections of the Southerners. I based none of my previous comments from the deleted thread off of "a website," but rather, on my own understanding of the politics of the 1850's and the well-documented fact that the federal judiciary in slave States (and D.C.) were decidedly pro-southern. This was due, in part, to the tradition of appointing or nominating "locals" to fill those positions.
One rationale for the suspension (of the privilege of the writ) of habeas corpus was to prevent a disloyal judiciary from attempting to free fellow sympathizers, as Taney did with his friend and neighbor, John Merryman.
The "facts" you quote are disputed and your conclusion is baseless. After the writ was suspended, there could be no lawfully issued writ.
What do you mean, not really? Yeah, really. GOPcap supported DiLorenzo's claim with an eyewitness account, second-hand accounts, and a patterns-and-practices observation as support. What part of that is "not really"?
Do you really think I come in here and start posting without reading the posts I'm replying to?
Or are you just trying to change the subject again and wriggle off the hook? He's got you. You popped off, and he's got you.
Bottom line, Lincoln did what DiLorenzo, citing Lamon, says he did, and the support is there.
Since he's dead we'll never know exactly what it was for. All we do know is that it exists and that it is not unlike the literally hundreds of other similar anecdotes found in Lamon's papers.
The court records conclusively show that Porter stated his authority as a whole came directly from Lincoln, so in that since he did indeed give it his blessing. The court records also conclusively show that Lincoln personally intervened to prevent the contempt order from being served upon Porter, which demonstrates specific sanction for Merrick's house arrest by Lincoln.
And the difference between authorizing and ordering is what?
If I were president of your homeowner's association and I give you a paper stating "you are hereby directed to collect five dollars in annual dues from every person living on Oak Street" it would be an order.
If you came to me and said "Jim Smith on the corner of Oak and Elm hasn't paid his dues and has an old toilet that he's using as a flower planter in his front yard. May I fine him" and I said yes, it would be an authorization.
In Murphy's case, Porter appears to have gone to Lincoln and said "you know, Abe, I've got all these judges jumping on my back and being nuisances to what we want to accomplish. Can I do something about them?" and Abe said yeah, thus making it an authorization.
If you're saying Lincoln authorized it because he suspended habeas corpus then that's another.
No. He authorized it for this specific case by giving sanction and cover to Porter, most notably in his intervention to block the contempt order from being served.
I sure am, though in no small way did the Douglas faction play a reciprocal causal role in the same events. My point was simply that your source treats Breckinridge as if he were some sort of fringe reactionary candidate making some sort of Pat Buchanan style bid from the political extreme. That simply isn't true - Breckinridge was the status quo candidate in 1860 as he literally was second in command of the previous administration! That makes every other candidate in the race a challenger in some form or another to the status quo.
The bottom line is that the breakaway Breckinridge candidacy facilitated Lincoln's election.
That's very debatable. Most electoral scenarios suggest that Lincoln would have won anyway even if a substantial majority of Breckinridge's votes had gone to Douglas (or conversely, Douglas to Breckinridge).
Perhaps not, but that alone does not make him a "confederate sympathizer," nor does it make every one of President Pierce's nominees evil incarnate. If you want to stand by your assault upon the person of Merrick you need to produce physical evidence and sources against him specifically. Either put up or shut up.
I based none of my previous comments from the deleted thread off of "a website,"
You gave a mini-bio of him containing details of his tenure and his home state. You then repeated an unusual typo that was unique to a single website containing the exact same information you posted about Merrick, but NOT your gratuitous charge of "confederate sympathy" against him. As to his appointment, even you should know that filling judge vacancies on the lower levels of the judiciary are for the most part non-controversial (save, of course, 2 or 3 recent high profile cases today) and usually tend to draw from qualified persons living in or near the vicinity of the given court. Merrick was a highly distinguished attorney and law prof at Georgetown University. That made him an ideal pick for the D.C. court far more than any speculated sympathies that you gratuitously suspect, although cannot demonstrate, that he had.
One rationale for the suspension (of the privilege of the writ) of habeas corpus was to prevent a disloyal judiciary from attempting to free fellow sympathizers, as Taney did with his friend and neighbor, John Merryman.
Even if it was, that simply wasn't the case with Murphy. Lincoln's henchmen were essentially using the suspension of the writ to force underage minors into the union army, one of them being Murphy.
In all likelihood Murphy went to the muster station and lied about his age thinking he would be sent off on some great military adventure as kids often do. Sure enough, he found out it wasn't all fun and games and then his father found out what he did. Historically when stuff like this happens the underage minor is either slapped on the wrist and discharged or his next of kin can go to court and get him discharged on a writ of habeas corpus. Sometimes the kid doesn't get caught and decides to stay, especially if he's only a few months short of age. But when it is discovered and the kid wants to go home they did it on a writ as the law permits. Lincoln had other plans though - he needed children like Murphy as cannon fodder in his battle lines so he wantonly impeded the judicial branch from carrying out this simple and common recourse action!
The "facts" you quote are disputed and your conclusion is baseless.
Demonstrate what is disputed. Perhaps you can dig up another left wing reparationist hack who thinks that children should be forced into military service.
After the writ was suspended, there could be no lawfully issued writ.
Two problems with that:
1. At the time of the Murphy case, Congress had not suspended the writ and all court holdings on the matter recognized that the president lacked the constitutional authority to suspend it himself.
2. As the ruling in Murphy specifically notes, Judge Merrick issued his writ to Murphy's attorney several days BEFORE Lincoln purported to extend the suspension of the writ into cases like Murphy's for the District of Columbia.
Similar as in Lincoln ordering an arrest or similar as in Lamon ignoring Lincoln's instructions?
The part where Lincoln personally ordered Merrick's arrest. That part seems to be missing.
Bottom line, Lincoln did what DiLorenzo, citing Lamon, says he did, and the support is there.
Where?
Or else Lamon, two Supreme Court justices, and a Maryland judge are all liars. The union military arrested preachers that wouldn't pray for Lincoln, legislators, dissidents, etc. The man wouldn't let something trivial like the Constitution or Supreme Court justices get in his way.
Lincoln's disregard for the judiciary was far more widespread than most historians will acknowledge. There are no less than FIVE federal rulings (and perhaps more) against the president's purported suspension of habeas corpus by courts all over the country.
Taney's decision in Merryman is the most famous but it's also the only one that ever gets talked about. Federal district courts in St. Louis and New York also ruled against him as did federal circuit courts in Boston and, as noted here, Washington. The case in Boston was even decided against Lincoln by another Supreme Court Justice who, like Taney, was riding the circuit at the time. Lincoln outright shunned all five of them - an action unprecedented by any event in our nation's history before or since then.
The similarity between the Murphy case and Lamon's report about Taney is found in Lincoln's use of the military to obstruct judicial proceedings against him.
Porter claimed that his authority came from President Lincoln when he refused to allow the writ to be served. And in a way he was correct since the order suspending habeas corpus was issued by President Lincoln. But where does Porter say that he was detaining Merrick specifically on the order of President Lincoln?
No. He authorized it for this specific case by giving sanction and cover to Porter, most notably in his intervention to block the contempt order from being served.
But where did Lincoln specifically order the detention of Merrick, like he is supposed to have specifically ordered the detention of Taney?
The only thing missing is your ability to grasp the finer distinctions and details of the Murphy case.
Once again, Merrick was not physically arrested into military custody - he was placed under house arrest to prevent him from attending the upcoming circuit panel in a case against the administration.
Second, the physical order placing Merrick under house arrest came from Porter to the troops he placed there. Porter later informed the court via his surrogate that his actions were authorized by Lincoln, hence the distinction between an order and an authorization. Lincoln's direct intervention and sanction of Merrick's house arrest is most conclusively demonstrated by the fact that he personally intervened to protect Porter from being held in contempt of court for placing sentries at Merrick's door.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.