Skip to comments.Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice
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. Taneys 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, "Lincolns 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. Marshals Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 17891989. Calhoun recounts the words of Lincolns former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Lamans history of Lincolns 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 Lincolns suspension of habeas corpus. He refers to Lincolns arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincolns "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 oclock 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 oclock. 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."
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 Countrys History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
Oh, no. Here it comes..........
Yep....duck and wait for the WLAT Brigade! :_)
Here's your Dixie wake-up call. Thanks, Tex!
My Pleasure......anything to wake up the opposition! :)
History never ceases to amaze me..
Actually, I think the column is almost verbatim from Prof. DiLorenzo's book. Thus, nothing new - just something to keep the pot stirred up.
And yes, as a matter of fact my copy of The Real Lincoln was signed by the author.
Because the people supported it, Lincoln could get away with suspending habeas corpus.
Because the people opposed it, Nixon could not get away with the far less serious crime of breaking and entering.
What most people fail to understand is that words on paper in a document called the Constitution have never had any finite meaning.
Thus if the people support going to war in Iraq it does not matter what authority or lack of authority exists. As long as the people support it, Bush has all the authority he needs. When the people no longer support a president, he could follow every rule perfectly, but if enough of the public were against him, he would still be impeached and convicted of high crimes and misdemeanors.
Of the people, by the people, and for the people.. says it all
Another Tommy DiLusional POS? You forgot the barf alert.
You'd think he reads FreeRepublic.
Wow, stuff we weren't taught in 5th grade, back in '59.
Yes but imagine had he lived what he would have accomplished.....
To put it in the most simplest terms (most simplest?) ...
WAR is HELL! and Lincoln did what HE thought was best for the country.
Since the north won, history is kind to the victor.
If the south had succeeded in upholding the Constitution of the United States as written, Lincoln would have been hanged as the real traitor.
Are you a DEMORAT? Of COURSE the Constitution had "finite" meaning......JEEEZ!
Well he has a PHD? do you?
No, just a B.S. and an MBA. But you are aware that his doctorate is in economics and not history, aren't you? One would hope that he does better there than when he tries to tackle subjects outside his field of education.
The finite meaning went out the door when neither Thomas Jefferson or James Madison(the Constitution's author) challenged the ruling in Marbury Vs Madison in 1803.
In that decision the court ruled that the Constitution had no "finite" meaning. That decision written by Chief Justice Marshall ruled the constitution meant what ever 5 of the nine justices said it meant that day. The reserved the right to decide it meant somthing else tomorrow.
Since that time there have been hundreds of decisions by the surpreme court that violate the "finite" meaning of the Document. Many rulings have created provisions that are not even mentioned in the document .. The Constitution expressly says that the court has no jurisdiction over things not in the constitution. To get around that he court just says provisions exist even when they don't. Abortion is an exmaple. The word abortion does not exist in the text of the constitution. The Supreme Court ruled the word was in the penumbra of the constitution. Look up the word Penumbra to get a clue.
To claim that the constitution has "finite" meaning is to just ingore the two hundred and one years that have transpired since it last had "finite" meaning.
If you had ever studied history, you would know the truth of what I say.
I missed the Union vote on suspending the Habeas Corpus - what was the date?
Marbury did no such thing. It meant that a majority of the Court could rule an act of Congress to be unconstitutional and therefore void. This is a far cry from ordering remedies, which is the real problem.
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